A new report from the European Commission examines the incidence of short-time working (working fewer hours per shift) across the European Union and in particular the use of this mechanism during the economic crisis as a means of avoiding job losses. David Gow, Brussels, wonders whether short-time working is yet another form of state aid to which the EU is turning a blind eye? Or just a quick-fix panacea before mass joblessness kicks in? Gow says, "already more than 1 million mainland Europeans, perhaps as many as 2 million, are working shorter hours as the recession-driven collapse of global trade and the ever-present financial crisis hits manufacturing in the solar plexus, knocking the stuffing out of it."
The report focuses on state-sponsored schemes, but also shows where the social partners have played a role in determining schemes. It found significant variations in the operation of short-time working schemes between Member States. (WCxKit)
Earlier this year, the European Commission (Directorate-General for Economic and Financial Affairs and Directorate-General for Employment, Social Affairs and Equal Opportunities) issued a report on short-time working arrangements as a response to cyclical fluctuations, focusing on developments during the recent economic crisis.
It finds that publicly sponsored short-time working schemes have been ‘intensively used’ during the recent crisis, ‘to prevent otherwise profitable enterprises from going bankrupt, and to avoid unnecessary labor shedding.
However, the report also states the extended use of short-time work can support declining sectors, thus delaying their restructuring. Short-time working schemes should therefore be "associated [with] an efficient unemployment benefits system that promotes labor reallocation."
The report finds a significant variation in the operation of short-time working schemes throughout the EU. These differences relate to the coverage of the schemes, the level of wage compensation and contributions paid by the state. It classifies the schemes as follows:
1. In nine Member States (Bulgaria, the Czech Republic, Hungary, Latvia, Lithuania, the Netherlands, Poland, Slovakia and Slovenia) where there was no scheme before the crisis, publicly supported short-time working has been introduced on a temporary basis to stabilize employment. Compared with countries that have long-standing programs, those introduced in these countries are typically less generous in terms of duration and benefits, and impose stricter conditions of eligibility. However, their coverage is wider in general.
2. In almost all countries with well-established short-time working schemes, which usually give workers on open-ended contracts access to short-time working, the coverage of schemes has been extended to atypical workers (in Austria, Belgium, France, Germany and Luxembourg). In Italy, coverage was temporarily extended to employees in companies previously excluded from short-time working.
3. The maximum duration of short-time working compensation was temporarily raised in this same group of countries, in some cases quite significantly (for example, from three to 24 months in Austria and from six to 18 months in Germany), with the exception of Italy and Portugal, where compensation for a reduction in working hours during periods of slack demand can in any case be paid for a relatively long period.
4. Conditions for the use of short-time working schemes were eased in Austria, Germany and Luxembourg. In Denmark and Germany, employers were also given more flexibility in the management of schemes.
5. Compensation for income lost due to reduced working hours was increased in France and Finland, where the schemes were previously less generous than the unemployment benefits, but also in Belgium, where the two types of benefits were broadly similar. To increase employer incentives to take up short-time working schemes, cuts in employer social security contributions or higher subsidies to employers were also applied in Austria, Belgium, Germany, Luxembourg and Spain.
6. Incentives for training were included in almost all new short-time work measures, both in countries where short-time working schemes already existed and in those where new schemes were established on a temporary basis. However, participation in training was compulsory for workers on short-time work in only four of the countries where the scheme was newly introduced (the Czech Republic, Hungary, the Netherlands and Slovenia). Incentives for training were the main element of the new measures adopted in Ireland, Latvia, Poland and Portugal.
The report focuses on state-sponsored short-time working schemes, but also mentions where social partners have played a role in shaping schemes. For example, in Belgium, additional funds managed by the social partners at sector level, to which employers and employees contribute, help to finance short-time working schemes. Sectoral funds managed by the social partners and designed to help small and craft companies also exist in Italy.
In some countries, such as Austria, a social partner agreement must be concluded before short-time working can be introduced in a company (irrespective of whether or not there is a works council in the company). The agreement should set out the coverage, time limit, extent of hours not worked, employment guarantee and retention period, level of short-time work benefits, training measures and qualification benefits (if relevant).
The report highlights the diverse approaches to sponsored short-time working in EU Member States during the recent severe economic crisis. It shows that Member States have either increased their offer of short-time working or introduced new schemes where none previously existed. (WCxKit)
Although there are clear benefits associated with short-time working, in terms of allowing viable companies to bridge a temporary downturn without having to resort to redundancies, the report highlights the fact that short-time working arrangements are intended as a temporary measure only and should not therefore be used for a sustained period. This may result in delaying necessary restructuring and supporting industries that are not viable in the longer term.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
Possible Causal Relationships Considerations
Have you ever read a court decision on a workers' compensation case and had the reaction……. “what?” The following discussion of a court decision definitely creates a “what?” reaction in most people. A press release explained how the Wyoming Supreme Court overturned a lower court decision denying medical benefits to a man who claimed a spinal cord stimulator caused a hernia.
In 1993 James L. Ball slipped while walking into a walk-in refrigerator to get some milk. Mr. Ball claimed injury to shoulder, neck, back and right leg. He was awarded permanent total disability.
What? Yes – Permanent total disability for a foot slipping. The court description of the accident does not indicate Mr. Ball fell when he slipped.
(WcxKit)
Wyoming is a monopolistic state for workers compensation. You have to wonder if the state employee/work comp adjuster was asleep at the wheel on this one. The location of the accident in the walk-in refrigerator makes it most likely an unwitnessed event. There is no mention in the press release if Mr. Ball's accident was witnessed or if any investigation was done to confirm how Mr. Ball's foot slipping would have injured his shoulder, neck or back. A strain to the right leg is possible. As Mr. Ball had a spinal cord stimulator implanted in 2000, he definitely had an injury, but did the injury happen on the job? Anyway, the claim was accepted.
In 2006 the original spinal cord stimulator failed and a new one was implanted. In 2007, Mr. Ball states he was at home lying in bed when the second spinal cord stimulator caused him to experience a sensation that made him to stand up “real fast” then he fell down, causing a pain in the groin. [Another unwitnessed event?]. Ball went to a Dr. James Shaw who ordered a CT scan that confirmed an inguinal hernia.
Dr. Shaw stated: I would consider this a work-related problem based off the origin of the fall.”
What? Inguinal hernia's are normally caused (according to the medical book) by a:
1). defect at birth,
2). prolonged wear and tear from lifting, straining or coughing,
3). age related weakness of the abdominal wall,
4). history of previous surgery in the area.
Risk factors increasing the chances of the hernia developing include advancing age, straining to urinate or pass stools, severe or prolonged coughing and obesity. Mr. Ball's description of how the hernia occurred does not fit the medical literature. In rare cases a hernia can be caused by falling hard on a blunt object, but there is nothing in the press release that states Ball fell on any blunt object. While Ball clalimed the spinal cord stimulator malfunctioned, there is no mention in the press release stating it was ever confirmed the stimulator malfunctioned. If the spinal cord stimulator malfunctioned as claimed, there is no mention of Ball bringing a products liability claim against the spinal cord manufacturer. What? You have to wonder why no products liability suit was brought if the spinal cord stimulator did malfunction.
The Wyoming Division of Workers Safety and Compensation denied payment for the hernia treatment on the basis it was not related to the original 1993 injury. There is no mention in the press release whether or not the state employee/work comp adjuster had an independent medical examination done to refute the doctor's statement. Also, there is no mention in the press release whether or not the Division of Workers' Safety and Compensation did any investigation to determine if Ball was working somewhere else when the hernia occurred. What? You have to wonder why there was no investigation into other causes for the hernia.
Mr. Ball disputed the Division of Workers Safety and Compensation determination. The matter was referred for a contested hearing. At the hearing Ball contended he was entitled to medical benefits for the cost of the hernia treatment claiming the hernia in 2007 was causally related to the 1993 injury. The hearing examiner ruled in Ball's favor stating the hernia was caused by a fall, the fall was caused by the spinal cord stimulator, the spinal cord stimulator was implanted to treat Ball's chronic back pain.
The adverse finding for the Division resulted in their appealing the matter to the District Court. The District Court found the examiner was correct in its finding of fact, but ruled against Ball stating a hernia is a compensable injury only when it is the original injury. The District Court considered the hernia a second compensable injury which was barred. Ball appealed the District Court decision to the Wyoming Supreme Court.
The Supreme Court reviewed the work comp claim on whether the hernia occurred “in the course of employment” per the Wyoming work comp statutes. The Supreme Court ruled the position of Ball was in keeping with the language and context of the statute and with the legislative intent. Ball therefore received the medical benefits for the hernia.
Almost all states treat injuries that result from the original work comp injury as part of the original injury. For example: The employee had a verified work-related fall that caused a leg fracture. A week later the employee is on new crutches on his way to the doctor's office for his leg fracture, when he loses his balance. He falls and breaks his arm. The broken arm is causally related to the fractured leg. In most jurisdictions this is referred to as a “compensable consequence of the injury.”
In a similar vein, in a very recent New York case, a Cornell University employee, James Smith, had a compensable work-related back injury in 2001. Smith suffered depression that was brought on by the chronic pain related to the back injury. In 2007 Smith committed suicide. The New York State Appellate Court found “sufficient causal relationship” between the suicide, the depression, the chronic pain and the original work comp injury. The court has ruled Ms. Smith is now entitled to death benefits under the New York work comp law.(WcxKitz)
Causal relationships can be tricky. There needs to be in-depth investigation into any possible intervening events that would sever the causal link between the initial injury and the subsequent injury. If the employee can prove that the second event would not have occurred except for the original event (accident), the medical cost and associated indemnity disability cost will be owed by the work comp insurer.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing.Contact: RShafer@ReduceYourWorkersComp.com
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
Some employees turn out to be the proverbial "employee from hell." One of the biggest mistakes an employer can make is to hire the wrong person. A poor hire can have a dramatic impact on the cost of business operations, both from a workers compensation standpoint and from an overall management standpoint. The wrong employee in the wrong position is an accident (or alleged accident) waiting to happen.
With the downturn in the economy over the last two years, many employers have had to downsize their operations. Most of those employers have taken the reduction in staff as a handy way of ridding themselves of the problem employees. Granted, some of employees who have been laid off work are great employees. However, if an employer has the choice of which to let go between the excellent employee and the problem employee, it will be the not-so-good employee that is laid off. (WCxKit)
While it is not always easy to recognize the potential problem employee during the hiring process, there are some definite clues an employer can look for to identify employees that pose headaches for your company in the future. Pre-employment personality testing and psychological testing can be used to identify several types of employees from Hell, including:
1. Mr. Always Unhappy – This potential employee will always find something to complain about. If he is talking, he is gripping, but he is not a constructive critic. He will find fault with every initiative of the employer. Mr. Unhappy will destroy morale of everyone in his department by keeping everyone in a continuous agitated state.
2. Ms. Happy Independent – This potential employee has no financial obligations. She still lives with her parents or someone else who supports her. Ms. Independent does not need her job so she never strives to do her best work.
3. Mr. Duck Out of Water – This potential employee is often drowning in financial obligations and has a family to support. Mr. Duck OutofWater desperately needs a job, so he is willing to take any job offered to him. His prior position was one of authority, respect and much higher pay. If he is hired, he will be grateful for the job until he realizes that he no longer has the authority and command he had in his prior job. Mr. OutofWater if he stays around long enough will morph into Mr. Unhappy.
4. Mr. Low Production – When this employees prior employer had the opportunity to rid themselves of him, they did so. Whether it is a lack of motivation or a limited intellectual capacity, Mr. Low Production will never produce either the expected quantity or expected quality that should come from the job you have available.
5. Ms. Anti Establishment – This employee opposes everything management wants done. She knows for a fact that all businesses are corrupt and will exploit her. Ms. Anti Establishment will know more about how the company should be run within a week of being hired than her manager will ever know.
6. Ms. Something For Nothing – From a workers compensation standpoint, this is the most dangerous employee. She has collected on one or more work comp claims at every one of her former employers. She will fake an injury shortly after being hired and will use every possible tactic she can to not have to return to work any time soon.
Small employers normally do not have the staff to undertake pre-employment screening and do not have the expertise to administer personality testing and psychological testing. There are pre-employment screening vendors that are available to any employer. The pre-employment screening can be done at the facility of the vendor, at your business or on the internet websites of the pre-employment screening vendors. While you have to pay for the testing of some people you will decide not to hire, the cost of testing is minor compared to the cost of hiring the employee from Hell.
There are three primary types of psychological testing. They are:
1. Personality testing that provides insights into the values, ethics and behavioral characteristics of the potential employee.
2. Aptitude testing that evaluates a job candidate's reasoning skills. The test measure verbal, numerical and abstract thinking.
3. Motivational testing that identifies the areas of interest and importance to the job candidate and identifies what motivates the person.
Personality testing and behavioral testing adds an element of objectivity to the pre-employment screening process. The pre-employment assessment testing will provide the employer with information on the aptitudes and behavioral traits of the potential employee. The pre-employment assessment can provide the employer with information on the ethics, values, honesty and integrity of the employee candidate. Often the behaviors identified in the personality testing can be confirmed through reference checks and background screening. (WCxKit)
If you hire any of the employees from Hell, not only do you create personnel problems for your company, you increase the probability of workers' compensation claims. There is a definite correlation between having problem employees and higher incidents of work comp claims. Almost all questionable work comp claims arise from employees who have performance issues. By identifying the potential problem employee and not hiring them, the employer can save the hassles and headaches they create, and work comp cost, too.
Note: obviously these thoughts are tongue in cheek, sort of, so take them with a grain of salt.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
Introduction
Workers compensation is premised on the concept that workers should be compensated for injuries or disablements sustained in the course of their employment. Causation is the key factor in determining whether a worker’s injuries are compensable. In determining questions of causation, issues often arise as to whether the injury was truly sustained in the course of employment or was the result of some pre-existing condition suffered by the worker. In such situations, a worker’s entitlement to compensation can be complex.
This article considers the role of pre-existing conditions on the issue of entitlement in workers compensation law in Ontario, Canada. It focuses on the use of the “thin skull” rule by Ontario’s Workplace Safety and Insurance Appeals Tribunal (“Tribunal”) and Workplace Safety and Insurance Board (“Board”). Finally, this article identifies relief available for employers who face situations where the severity of their worker’s injury is enhanced by the existence of a pre-existing injury.
Causation and the Thin Skull Rule
In Ontario, a “significant contributing factor” analysis is used to determine whether a worker’s injury or condition is compensable. This test focuses on whether the work itself made a significant contribution to the worker’s injury. The work need not be the sole contributing factor to the injury. As long as the work makes more than a de minimus contribution to the injury, the worker will be entitled to workers compensation.
Where a worker’s pre-existing condition contributes to an injury sustained in the course of employment, workers compensation adjudicators in Ontario apply a doctrine known as the “thin skull” principle. This doctrine originates from common law principles of causation. It provides that individuals are to be taken as they are found, frailties and all. In the context of workers compensation law, this rule means that where a non-compensable pre-existing factor may have rendered a worker more susceptible to injury, such increased susceptibility will not preclude entitlement to benefits. Providing the work related accident/disablement was still a significant contributing factor to the injury or subsequent disability, the worker will be entitled to benefits.
The rationale behind applying the thin skull rule to workers compensation cases was explained in the Tribunal's Decision No. 915 at p. 136:
The thin-skulled doctrine also applies in Workers Compensation cases and for two reasons. One reason is that permitting compensation to be denied or adjusted because of pre-existing or pre-disposing personal deficiencies would very substantially reduce the nature of the protection afforded by the compensation system as compared to the Court system for reasons that would not be understandable in terms either of the historic bargain or the wording of the legislation. The other reason is that in a compensation system injured persons become entitled to compensation because they have been engaged as workers. They have functioned as workers with any pre-existing condition they may have had. It seems wrong in principle that conditions which did not affect their employment as workers should be relied upon to deny them compensation as injured workers.
Thus, workers will be entitled to compensation for injuries sustained in the course of employment, even if such injuries resulted from a pre-existing condition, provided that the work itself was a significant factor in the injury.
The Crumbling Skull Exception to the Thin Skull Rule
Canadian common law has recognized a limit to the thin skull principle in situations where a pre-existing condition is so large a causal factor in an injury that it overwhelms the significance of the conduct of the tortfeasor. This concept is known as the “crumbling skull” rule.
The crumbling skull rule has been applied by the Tribunal to limit entitlement for workers with pre-existing symptomatic conditions. Its application was expressed in Decision No. 1870/07:
If a pre-existing condition is symptomatic and is so large of a causal factor in the subsequent disability that it overwhelms the significance of the accident, then triers of fact might conclude that the accident, compensable or not, was not a significant contributing factor to the subsequent disability. In such a case, the disability or condition would not be compensable.
In applying the crumbling skull principle, the Tribunal often focuses on whether the pre-existing condition was symptomatic or asymptomatic. In cases of symptomatic pre-existing conditions, the Tribunal will, on appropriate facts, find that the crumbling skull exception applies. (WCxKit)
Relief for Employers with Thin Skulled Employees
The Board operates a Second Injury and Enhancement Fund (SIEF) to provide employers with financial relief where a pre-existing condition enhances or prolongs a work-related disability. By providing employers with such financial relief, the SIEF encourages employers to hire workers with disabilities.
The SIEF is only available to Schedule I employers (those employers, largely in the private sector, who are covered by the Board’s insurance fund). Schedule II employers (those employers, largely in the public sector, who are self-insured) must pay for all Board costs, whether or not they can be attributed to a pre-existing condition.
The Board’s policy regarding the SIEF defines a pre-existing condition as an underlying or asymptomatic condition which only becomes manifest post-accident. This definition implicitly recognizes the distinction between compensable asymptomatic pre-existing conditions, and non-compensable symptomatic pre-existing conditions embodied in the crumbling skull exception to the thin skull rule.(WCxKit)
If it is likely that a pre-existing condition either contributed to the work-related accident or prolonged or enhanced the work-related disability, employers may be entitled to relief under the SIEF. The percentage of employer costs transferred to the SIEF depends on a consideration of the medical significance of the pre-existing condition in conjunction with the severity of the accident. While, in most cases, 50% of employer costs are transferred to the SIEF, employer relief under the SIEF can reach 75% and above in appropriate circumstances.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
One of the easiest ways for an employer to control the cost of workers compensation is to hire employees who are unlikely to have a job related injury. To identify and hire employees who take safety seriously takes some efforts but makes great economic sense. To find the best people to hire is easier if you have a hiring plan that includes identifying the requirements of the position you are trying to fill and the capabilities (both physical and mental) of the person you are considering for the position. By creating a standardized hiring plan and using it, you identify the best job applicant for your company. Risk Management starts with hiring the right employee.
1- Job Analysis
The hiring of the best applicant for the job is a lot more than reading a resume and having an interview. With all the self-help books and internet websites on how to write a great resume and shine in the interview, a job applicant may make a good impression but be a poor choice for your company. A job analysis will assist you in determining if the job applicant is a good fit for your company. (WCxKit)
A job analysis breaks the specific position being filled down into its component parts. Each part of the job is separated into its essential features including skills, abilities, knowledge and attitudes needed to perform the job. By identifying the task and responsibilities of the position, the employer will be able to compare job applicants against the criteria of the job. Each job applicant can be tested (see Testing below) to measure their capabilities in each of the essential features of the job.
A job analysis for a manual labor position could include the applicant's ability to lift weights, carry weights and the strength to push or pull a weight. The frequency of performing these tasks – never, occasionally, frequently or constantly – is determined when the employer creates the job analysis. The applicant's ability to do each can be measured and tested prior to making a job offer.
In addition to strength testing for the manual labor position, the applicant's ability to bend, turn, twist, squat, crawl, climb, reach out, reach up, grasp and pinch can be tested. Again, the frequency of these activities should be established when the employer creates the job analysis. By establishing the applicant's ability to perform the physical demands of the job before hiring the job applicant, the probability of an on-the-job injury is greatly reduced.
The job analysis for a clerical position could include the applicant's ability to use a keyboard, operate word processing programs and perform other computer skills. The frequency of these activities and the speed in which they need to be accomplished should be established by the employer prior to the start of the hiring process.
2- Job Descriptions & Specifications
Each job position should have a written job description that specifies what the employee will be doing on an everyday basis. It should identify the task to be completed, the equipment or machinery that will be used, whether he/she will be working as a part of a group or have individual responsibilities and whether or not the employee will be supervising either processes or people.
The skills, abilities and knowledge needed for the job should be established. This includes any requirements for prior experience or specific education. For instance, the job description can include the requirement to operate a forklift safely, or the requirement to close a difficult sale successfully, or the requirement to have a law degree.
3- Testing
To compare the job applicants capabilities against the job description and specifications of the job, screening and testing is needed. The employer who has the expertise in testing job applicants can perform the necessary testing, but most employers elect to hire a vendor who specializes in performing pre-hire testing. The testing can include:
1. attitude and integrity assessment profiles
2. functional capabilities testing
3. pre-offer agility and strength testing
4. post offer comprehensive medical screen to identify pre-existing medical limitations and cumulative trauma
4- Screening and Background Checks
All pre-employment screening and background checks must comply with federal law and the state law where the employee is being hired. Pre-employment drug testing (as well as post-employment drug testing) should be a condition of any job offer. Thirty-eight to fifty percent of all workers' compensation claims are related to substance abuse according to the Tennessee Department of Labor. The employers who actively manage their drug-free workplace program benefit from higher productivity, fewer work related accidents, lower absenteeism and lower medical cost (both from medical insurance claims and workers compensation claims). At least a dozen states require the workers compensation insurers to offer your company a premium discount if your company has a drug-free workplace program.
The job applicant should agree to a background check which includes checking the applicant's background for hidden criminal records, drug arrest, prior employment history, prior academic achievements and credit history {a good reason to use an outside vendor is to let the vendor comply with the Fair Credit Reporting Act.} The pre-hire job screening and testing vendor should be a Designated Agent approved by the Department of Homeland Security so they can do the E-Verify Legal Right to Work check.
5- Psychological Testing
Psychological testing can be used to screen potential employees. There are three primary types of psychological testing. They are:
5. Personality testing that provides insights into the values, ethics and behavioral characteristics of the potential employee.
6. Aptitude testing that evaluates job candidates reasoning skills. The test measure verbal, numerical and abstract thinking.
7. Motivational testing that identifies the areas of interest and importance to the job candidate and identifies what motivates the person.
Personality testing and behavioral testing adds an element of objectivity to the pre-employment screening process. The pre-employment assessment testing will provide the employer with information on the aptitudes and behavioral traits of the potential employee. The pre-employment assessment can provide the employer with information on the ethics, values, honesty and integrity of the job applicant. Often the behaviors identified in the personality testing can be confirmed through reference checks and background screening.
6- Without Discrimination
Nothing will mess up your hiring plans more than a lawsuit brought by a job applicant who believes there was discrimination in the hiring process. Be fully up to speed on the requirements of the Americans with Disabilities Act (ADA), the Civil Rights Act, the Equal Pay Act and the Age Discrimination in Employment Act. Any job applicant can file a lawsuit with the Equal Employment Opportunity Commission (EEOC).
All hiring decisions should be based on the job applicant's ability to do the job as measured in the testing you have done. If you let a job applicant's disability, ethnic background, gender or age influence your hiring decision, and the job applicant proves it, the legal remedies include the lost wages, compensatory damages, legal fees, and in severe cases of discrimination, punitive damages. (WCxKit)
Safe Hiring
By establishing the criteria of the job through the job analysis, including the physical requirements and the job specifications, the employer can eliminate most of the job applicants who do not have the physical capabilities to perform the job safely. This prevents many work comp claims from ever occurring. The pre-offer and post-offer job testing can identify job applicants who have medical limitations, while the workers compensation background check can verify the veracity of the job application in regards to prior workers compensation claims.
Author Rebecca Shafer, President of Amaxx Risks Solutions, Inc. is an attorney and national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: RShafer@ReduceYourWorkersComp.com.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
A Memphis businessman was recently indicted on criminal fraud charges of underreporting his payroll for his labor subcontracting companies to deprive insurance companies of more than $1 million in workers compensation premiums.
The individual reportedly had a suitcase packed and was preparing to leave town when authorities took him into custody. (WCxKit)
The man is the owner of Xpress Services, Express Services, Labor Fast, Fast Track Systems and CSI Services, Inc. The companies provide workers for a variety of construction jobs, mostly for drywall work.
Authorities report the man had some 110 employees, but only claiming having half that many and paid no workers comp on the others. The alleged offenses occurred between January 2006 and July of this year. (WCxKit)
He was indicted on four state counts of workers comp fraud over $60,000, felonies that carry up to 12 years behind bars on each count.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
The Houston District Office of the U.S. Equal Employment Opportunity Commission (EEOC) has filed two separate lawsuits to enforce the ADA, demonstrating the on-going relevance of and need for the law in today’s workplace.
The lawsuits, filed in the United States District Court for the Southern District of Texas, Houston Division, addresses various alleged unlawful practices by these two employers illustrating the broad and necessary protections afforded by the ADA.
In addition, one of the employers, DynMcDermott Petroleum Operations Co. (“DynMcDermott”) is alleged to have violated the Age Discrimination in Employment Act (“ADEA”). (WCxKit)
In the suit against ENGlobal Engineering Inc. (“ENGlobal”) (Civil Action No. 4:10-cv-XXXX), the EEOC alleges the company terminated the employee, Jeff Rose (“Mr. Rose”), because it regarded him as being disabled. ENGlobal is a publicly traded corporation providing engineering and professional services to the energy sector.
According to the EEOC, Mr. Rose worked for ENGlobal as a safety supervisor for approximately two weeks when, unbeknownst to him, he began to develop multiple sclerosis (“MS”) symptoms that did not debilitate nor substantially limit him. Mr. Rose informed his manager of the symptoms and kept him informed of the conversations he had with his doctors as they tried to ascertain what was wrong with him. As the manager learned more about Mr. Rose’s condition and realized he faced a potential MS diagnosis, the manager searched for a replacement and urged Mr. Rose to take medical leave despite the fact that he could continue working. After taking medical leave at his manager’s insistence, Mr. Rose presented the company with a doctor’s note stating he had clearance to return to work.
Although his position was available, ENGlobal’s human resources manager falsely told Mr. Rose it was not. Further, although the human resources manager then told Mr. Rose that ENGlobal would try to find him another position within the company, it took no such action. Three weeks later, ENGlobal hired another individual for Mr. Rose’s position. It is the EEOC’s position that ENGlobal’s management violated the ADA by incorrectly and impermissibly viewing Mr. Rose as substantially limited in his ability to perform the work of any job within the company.
The ADA was also violated by DynMcDermott when the company failed to hire an applicant for employment, the EEOC alleged in the lawsuit filed against this employer for actions occurring at its Winnie, Texas facility (Civil Action No. 4:10-cv-XXXX). The EEOC also maintains DynMcDermott’s actions violated the ADEA.
According to the lawsuit, DynMcDermott is a privately held corporation providing maintenance and operations services for the Strategic Petroleum Reserve managed by the U.S. Department of Energy. The EEOC alleges that the applicant and employee, Phillip (“Mike”) Swafford (“Mr. Swafford”), applied with DynMcDermott for a position he had previously held with the company. He was interviewed by and recommended for the position by both his former supervisor and the manager in charge of hiring for the position.
Nonetheless, the facility’s director, who had authority over both the supervisor and the hiring manager, stated to them and others, on at least two occasions, that Mr. Swafford should not be hired because of his age, then 56 years, and his wife’s cancer, which the director simply assumed would interfere with Mr. Swafford’s ability to perform his job duties. The EEOC alleges this assumption and DynMcDermott’s unwillingness to hire Swafford because of his age and his wife’s cancer violated both the ADA and the ADEA. DynMcDermott ultimately hired a 35-year-old applicant with no prior experience with the company for the position.
The EEOC filed the lawsuits after conciliation efforts to reach a voluntary settlement with each employer were unsuccessful. (WCxKit)
In each lawsuit, the EEOC is seeking a permanent injunction prohibiting the relevant company from engaging in employment discrimination, as well as other non-monetary relief to address the unlawful practices. The EEOC is also seeking back pay, compensatory damages, punitive damages or liquidated damages, and other relief.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
Recently in the “Commercial Appeal” (TN), quoting from a
New York Times article about the trickiness of drug testing when workers take prescriptions drugs the article ended with this quote.
“Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse, employers cannot afford not to address this issue.”
employers cannot afford not to address this issue.”
Indeed drug testing in the workplace is challenging given the fact so many people take illegal drugs. Employers have every right to discover who these workers are before a serious workplace injury occurs.
However, the quote seems to be saying if a person is taking a legal prescription drug(s), albeit those possibly causing impairment leading to an accident in the workplace, such legal use qualifies as “prescription drug abuse.” (WCxKit)
It is a fine line between maintaining a drug-free workplace understood to mean illegal drug usage and firing someone for taking prescription drugs – some even for injuries sustained in the employer’s workplace.
Statistics show (Quest Diagnostics) of 500,000 drug tests, use of prescription drugs rose 18% between 2005 and 2009. Opiates were found in those workers following an accident at four times the level than when they were first hired.
That being said, a leap cannot be made from high usage of prescription drugs to abusive usage of prescription drugs. Some people abuse. Others take their medications appropriately and, yes, the drug is found in their system at testing.
The real questions are: Are workers taking legal prescription drugs showing evidence of behavior as a result of their medication(s) putting them at a higher risk of a workplace injury? Are workers taking prescription medication actually having more injuries? In other words, is there a quid pro quo?
Employers must continue to test for drugs in the workplace. In addition to the drug-free policy, they must implement a plan for working with those taking prescription drugs and evaluate each individual on the basis of what is found during the test and the behavior of the worker, taking steps to intervene if unsafe behaviors or potential for accidents are found.
The drug-testing plan needs openness and communication with employees taking RX meds. A policy must be set as to what will be tolerated within the guidelines of the prescription dosages. Employees must also be open and honest about medications they take — opiates or not — at the time of drug testing. It’s common knowledge diabetics may experience inconsistent affects from both their disease and the medication they take, even when taken correctly. No employer would be allowed to fire a diabetic if deemed at risk for an injury. They would be required to accommodate.
Someone taking two Vicodin twice a day, morning and evening, would be expected to have a fixed level of the drug in his/her body. If at testing a person is found to have much high amounts, that’s the time for the employer to step in.
Steps an employer may consider are counseling, re-assigning the person to a safer job, working with employees and their physicians to substitute or alter the dosage during the workday. Check the laws in your state and the regulations of the American with Disabilities Act. (WCxKit)
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing.
Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
A Byram, Miss., bar and restaurant violated federal law by subjecting a pregnant waitress to employment discrimination, according to a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). (WCxKit)
According to the EEOC’s lawsuit, Reed Pierce’s, a billiards-and sports-themed bar and restaurant, fired Melody McKinley when she was four months pregnant after she had asked to change her shift to go to a doctor’s appointment and experienced pregnancy-related complications.
Although her doctor never put any restrictions on her ability to work, the complaint alleges that Reed Pierce’s told McKinley she was a good employee but “the baby was taking its toll on her” and she was let go from her job. When McKinley asked to keep working as a hostess or call-in employee, the restaurant refused, the EEOC said. The EEOC asserts that the company’s actions were intentional and demonstrated a reckless indifference to its employee’s federally protected rights.
Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act. The EEOC filed suit in U.S. District Court in the Southern District of Mississippi (Civil Action No. 3:10-cv-00541-WHB -LRA) after first attempting to reach a voluntary settlement. The suit seeks monetary relief for the victim, a court order requiring the company to implement new policies and practices designed to prevent pregnancy discrimination, provide employee training on anti-discrimination laws, posting of notices at the work site and other injunctive relief.
“The law protects employees’ rights to continue working during their pregnancy,” said Delner Franklin-Thomas, district director for the EEOC’s Birmingham District Office.
C. Emanuel Smith, regional attorney for the EEOC’s Birmingham District Office, said, “It is important for employers to recognize that women have the right to remain gainfully employed throughout their pregnancy. This lawsuit is a step in that direction.” (WCxKit)
In Fiscal Year 2009, the EEOC received 6,196 charges alleging pregnancy discrimination.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
The question has been asked: Are there any situations where the employee might elect not to pursue a workers compensation claim or might not have a workers comp claim for a work related injury? The answer is yes. While it is not common for the employee to choose not to have a workers compensation claim, or does not have a workers comp claim by statute, it does happen.
1-Excluded People (no coverage)
When an employer does not meet the state's requirements for workers comp insurance, the employee might not have a workers comp claim. For instance, in the states requiring employers with three or more employees to carry workers comp insurance, and the employer only has two employees, the injured employee would not be able to pursue a workers comp claim.
When the injured employee is the sole proprietor or a partner in the business, s/he will not be covered for a workers comp injury unless s/he buys a workers comp insurance policy on him/herself (which most sole proprietors do not do). (WCxKit)
Another instance where an employee might not be able to pursue a claim is in the states excluding farm laborers, seasonal workers, domestic servants, real estate agents and direct sellers from coverage under the workers comp statutes. When one of these type employees is injured on the job, they still have the right to bring a lawsuit against the employer if they believe the actions of the employer caused their injuries.
2-Pursuing a Tort Claim (want deeper pocket)
In the states where the workers comp insurer has full right to subrogation recovery, the employee will occasionally chose not to pursue the injury claim against the employer. An example of this would be the injury to the traveling salesperson resulting from an automobile accident. The third party was at fault and the accident occurred in a state where the employer controls the selection of the medical provider and the employer/insurer has full subrogation rights.
An attorney representing the injured employee will often tell the employee they can get a much bigger settlement through the tort system than they can through workers comp. Instead of the employee being treated by the medical provider selected by the employer or the employer's insurance company, the employee is treated by a medical provider selected by the employee's attorney.
The attorney, of course, is recommending the liberal medical provider who will keep the employee coming back for additional treatment for as long as the employee is willing to go to the doctor. The reasoning for this is simple, the longer the employee is off work and the higher the medical bills are, the greater the settlement the employee's attorney can demand from the insurer of the vehicle at fault in the auto accident.
Another example of where an injured employee might want to opt out of filing a workers compensation claim is an injury on a construction site. On a large construction project you often find various subcontractors all working at the same time. This will often result in an employee getting injured due to the negligence of a third party. The employee again will have the choice between pursuing the claim for personal injury against the responsible party or filing a workers compensation injury claim. (Of course, in the states where the right of subrogation has been diminished or taken away from the workers comp insurers, the employee's attorney will often pursue both types of claims simultaneously).
A third example of where an employee might choose to pursue a tort claim rather than a workers comp claim is the delivery person who trips and falls on the defective sidewalk belonging to the business where s/he is making a delivery. While a delivery person has the right to pursue a workers comp claim against the employer, the owner of the property where s/he fell has liability insurance, and the award s/he can collect on the tort claim will surpass what can be collected on a workers comp claim. (WCxKit)
Summary
While it is unusual for the employee to opt out of coverage for a workers comp claim, or for coverage not to apply to the work related injury, it does happen. The wise employer will know when this situation is occurring and keep in close contact with the employee in case the circumstances change.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing.
Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
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