Pittsburgh‘s firefighters say “yes” to random drug testing for the first time in city history, as part of a policy where firefighters may be fired for a second drug offense.
According to the Associated Press, the testing agreement was announced recently as part of a new five-year contract backed by the International Association of Fire Fighters Local 1.
Under the new policy, firefighters who do not pass a drug test are to be placed on a “last chance agreement” whereby they can be fired for a second failed drug test. (workersxzcompxzkit)
The decision on whether to fire firefighters over a drug test will also be handled by neutral arbiters as opposed to a trial board consisting of three other firefighters. The trial boards will still be in place to review potential firings for other offenses.
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, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker about workers’ comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Unions are reportedly coming out against a proposed move in Australia to form a national system of workplace safety laws. (See WCK related blog http://blog.reduceyourworkerscomp.com/?p=748.)
According to a report in Australia’s The Age, union members believe most of the benefits from such a move would favor employers and not employees. Among their concerns are that worker safety could be endangered by the changes, mainly that a lack of safeguards in place would not ensure employers were prosecuted over health and safety breaches.
A meeting of state and territory ministers recently agreed to the release of the ”model” laws for six weeks of public comment – although Western Australia, the only non-Labor participant, indicated it was not likely to join the national system as proposed.
According to a number of businesses, complying with different laws in the states and territories has been a big problem, reportedly leading to more ”red tape” or compliance costs. Key employer groups, like the Australian Industry Group, the Business Council of Australia, and the Minerals Council of Australia recently released a joint statement requesting government’s support of a national system. (workersxzcompxzkit)
The Access report, commissioned by regulator Safe Work Australia, reportedly discovered businesses would be the biggest winner from the switch to national laws while employees would experience little or no benefits from the changes.
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, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-786-8286.
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Corporation to Pay $23 Million to Settle Employee Lawsuit
A California corporation reached a tentative settlement of a 2003 class-action complaint in federal court alleging the employer illegally withheld overtime pay to drivers of its delivery routes. According to the lawsuit, the employer misclassified route drivers as exempt employees under wage-and-hour laws to avoid paying overtime for working more than a 40 hour workweek.
Misclassification of the employees can result in workers’ comp problems, as well as, lawsuits.
Union representatives said the employer will pay $23 million to settle the matter, in line with a federal mediator’s proposal. The dispute was in arbitration up to this point.
A judge for U.S. District Court in San Jose halted its proceedings last week while the parties documented and made arrangements for final approval of the deal. (workersxzcompxzkit)
The union said it would be months before a final settlement agreement gains approval from the court.
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, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-786-8286.
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Do not use this information without independent verification.
All state laws vary.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Workers' Comp and Labor Unions Make a Friend, Not a Foe Labor Unions should be brought on-board in the workers' compensation arena. After all, a good company cares for its employees and wants them to be treated fairly. Tips in forging good relationships with the unions include: 1. Talk to representatives from your local unions early in the process. 2. Discuss the union's policies on seniority and how this could affect injury management. Do they have opinions on this matter? Listen. 3. Does the union require supplemental pay for the injured? Does this come from the union itself? Be sure to document the answers you receive and be aware of the implications. 4. Transitional duty is a fundamental part of) getting your injured employee back on the job. Do your unions have policies on working with an injury or post-surgery? A good manager obtains union buy-in by incorporating their opinions into the process whenever feasible. It is not possible to make everyone happy one hundred percent of the time, but an attempt at seeing issues from all sides is always appreciated and emanates the feeling of control. Proceeding without any union input when implementing a policy as critical as workers' compensation only presents an "us-them" mentality which can lead to higher long-term costs. Further, it is suggested the company identify "collateral source benefits" – those perks your company or union offers which may enrich an employee who is not working and develop work-around strategies to facilitate return to work. (workersxzcompxzkit) Author: Robert Elliott, J.D. Contact Robert at Robert_Elliott@ReduceYourWorkersComp.com
Workers' Comp Kit Books & Guides: Corner.advisen.com/wcbooks WC Calculator: www.reduceyourworkerscomp.com/calculator.php WC 101: www.ReduceYourWorkersComp.com/workers_comp.php Follow Us On Twitter: www.twitter.com/WorkersCompKit Do not use this information without independent verification. All state laws vary.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
An Employer ALERT
The Department of Transportation (DOT) announced that as of August 31, 2009 the new direct observation rules must be observed. Those rules require (previously permitted) regulated employers to directly observe every collection upon return to duty or follow-up to a violation.
Under Section 40.67(b)(i) the direct observation includes a requirement the donor “raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show [the collector] by turning around, that they do not have a prosthetic device.”
A drastic rule change? Yes, it is. Collection providers are scrambling to prepare and some are going to stop providing collection services all together.
WARN YOUR EMPLOYEES
But, one key point is being missed: employees must be warned! In my opinion, all employers would be well advised to not only place a new warninig about this change into their policies but also to post notice of this change in conspicuous places throughout their workplaces.
Recent court cases (e.g. McVey v. National Organization Services, Inc., Munn v. Kraft Foods, Inc.) have made it clear that complete knowledge of a company’s program and warning of the consequesces of violating that program are essential.
Failure to provide adequate warning could cost an employer in a wrongful discharge action, unemployment case or workers’ compensation challenge.
Additionally, it must be remembered that this change impacts not just DOT-regulated employers but, depending on employer choices and in certain industries, employers in 10 states (AL, CA, CT, DE, MD, MT, ND, OH, TN, VT) MUST follow DOT rules. Any employer that has chosen to follow DOT rules or negotiated doing so in their collective bargaining agreemant would also be impacted by this rule change.
Attorney Judge, JD, LLM can be reached at The Center for Drug Test Information, 877-423-8422.
info@centerfordrugtestinformation.com http://www.centerfordrugtestinformation.com/
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Do not use this information without independent verification.
All state laws vary.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Attorney THeodore Ronca, a well-known workers’ compensation attorney in NY knows the history of workers’ compensation and offers his perspective on possible health care reforms and workers’ compensation. In 1993, when a national heath care bill was being drafted, the workers’ compensation community asked, without receiving a reply, “What about workers’ compensation?” The legislation died without much discussion of the issue but it was clear workers’ compensation was, and remains, a thorny issue.
The principal problem is medical care and disability payments have become part of a network of laws and private programs different in each state. When a new program appears it necessarily affects all others even where no effect is intended. Social Security co-existed with workers’ compensation for decades with little interaction until the disability benefits portions were enacted. Following that, entirely new claims strategies appeared varying from state to state, depending on local law.
Simply removing the medical portion of workers’ compensation (a measure proposed in New York during the 1960s, the so-called “Canadian” model) was vehemently opposed by every part of the workers’ compensation community because profit in writing workers’ compensation would seriously diminish but the hours of work on each file would not.
Claimants’ attorneys would lose the ability to select a medical provider – always a workers’ compensation regular – and lose the predictability of future reports. A small, but significant, portion of the medical community would be without work. A large volume of necessary medical testimony would have to be done by treating physicians who loathed appearances at the Board.
Today in 2009, once again workers’ compensation becomes the invisible giant which cannot be ignored but cannot be discussed. For decades, workers’ compensation has been an important bargaining chip in labor negotiations. Unions are a major source of work for large compensation firms. The firms, when aggressive, can flood a single employer with hundreds, even thousands, of claims.
The engines driving every compensation claim are the medical reports. If they arrive with random conclusions they become a vehicle stuck in neutral – making annoying noises but going nowhere. A national medical program is certain to cause that, which is why opposition exists which would prefer not to discuss its role. Every claimant’s attorney knows what happens when a medical report arrives from a physician or surgeon who does not know, or care to learn, the nuances of phrasing a compensation medical report. (workersxzcompxzkit)
What will happen? In the presence of a deafening silence on the subject it is difficult, and unwise, to say. It can be said, however, many unintended and unpleasant, consequences are certain. This is the unfailing scenario following the introduction of every social insurance program.
Author: Attorney Theodore Ronca a practicing lawyer from Aquebogue, NY, has written on the history of work comp. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.
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Do not use this information without independent verification.
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©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Attorneys Denise Klug and Aimee Stern, noted authorities on workers’ compensation in West Virginia, offer insight into a important new West Virginia case which is employer-unfriendly.
1. In Peters v. Rivers Edge Mining, Inc., the Court upheld a jury verdict awarding nearly $2 million in damages to a plaintiff who alleged workers’ compensation discrimination.
2. The plaintiff, George Peters, was employed as a coal miner by Rivers Edge, when he injured his wrist at work. Mr. Peters filed a workers’ compensation claim, and was taken off work by his physician for approximately two months.
3. Three days after Mr. Peters was released to return to work, his workers’ compensation case manager received an email from a representative of Rivers Edge, indicating Rivers Edge would place Mr. Peters in its transitional work program, due to his continuing physical restrictions, and he was to contact Mr. Peters regarding his return to work.
4. In his Rivers Edge personnel file, Mr. Peters provided as his contact number the phone number for his mother’s house, where he did not live. Accordingly, the Rivers Edge representative was unable to speak to Mr. Peters until two days later. At that time, Mr. Peters was informed he could return to work at Rivers Edge. However, the parties disputed when Mr. Peters was required to report to work.
5. Rivers Edge claimed Mr. Peters reported for work one day late, thus violating the “2-day rule” of the collective bargaining agreement, providing an employee who is absent from work for two consecutive days without approval, other than for a proven sickness, may be discharged. Rivers Edge terminated Mr. Peters’ employment for violation of the 2-day rule.
6. Mr. Peters’ union filed a grievance on his behalf to challenge the discharge. The grievance was arbitrated, and the arbitrator decided that Rivers Edge demonstrated just cause for terminating Mr. Peters’ employment.
7. Mr. Peters filed a lawsuit, alleging his termination violated the West Virginia statutory provision prohibiting employers from retaliating against employees who applied for worker’s compensation benefits. The jury found Mr. Peters’ termination did constitute worker’s compensation discrimination, and awarded him almost $885,107 in compensatory and $1 million in punitive damages.
8. Rivers Edge appealed to the Supreme Court. The Court affirmed the jury’s verdict, and in so doing, made the following “employer-unfriendly” rulings:
a. The fact the arbitrator found Rivers Edge’s termination of Mr. Peters was proper under the collective bargaining act did not necessarily mean Mr. Peters could not prove his termination constituted workers’ compensation discrimination.
b. The jury’s award of $513,410 for front pay was proper because reinstatement or front pay is available as damages to a plaintiff alleging workers’ compensation discrimination.
c. The $1 million in punitive damages awarded by the jury was affirmed. As support for its decision that punitive damages were warranted, the Court cited the following: Rivers Edge had been “suspicious” of the validity of Mr. Peters’ workers’ compensation claim; it had placed him under surveillance when his doctor did not approve his return to work; once his return to work had been approved, Rivers Edge continued its surveillance of him rather than responding to his attempts to return to work; and although Rivers Edge had known of Mr. Peters’ ability to return to work for six days, it gave him only five hours notice that he was required to return to work. (workersxzcompxzkit)
9. Obviously, this decision will cause concern to many West Virginia employers who think if their termination of an employee is approved in arbitration, they are safe from a lawsuit; however, under this decision, they are not. In addition, the Court condemned the employer for being “suspicious” of the claim and for placing the employee under surveillance, a common practice among employers.
Possibly the best way for employers to protect themselves from a result like the one in Peters v. Rivers Edge is to make sure to conduct surveillance only when there is a reason to believe an employee is engaging in activities inconsistent with his or her claimed injury, and to be sure to thoroughly document the non-discriminatory reasons for every employment decision made with respect to an employee who has filed a workers’ compensation claim.
About the authors
Denise D. Klug is a partner in the Litigation Department of Dinsmore & Shohl, LLP. Denise represents companies in the chemical, hospital, steel, trucking and numerous other industries in Ohio and W. Virginia. Denise counsels clients on violations of specific safety requirements, State Fund issues, premium discounts and establishing Drug Free Work Place Programs. She can be reached at denise.klug@dinslaw.com or 304-230-1700.
Aimee M. Stern is a member of the Litigation Department of Dinsmore & Shohl, LLP with an emphasis on toxic torts, medical malpractice and workers’ compensation. She can be reached at aimee.stern@dinslaw.com or 304-230-1603.
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All state laws vary.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Labor Unions should be brought on-board in the workers’ compensation arena. After all, a good company cares for its employees and wants them to be treated fairly.
Tips in forging good relationships with the unions include:
1. Talk to representatives from your local unions early in the process.
2. Discuss the union’s policies on seniority and how this could affect injury management. Do they have opinions on this matter? Listen.
3. Does the union require supplemental pay for the injured? Does this come from the union itself? Be sure to document the answers you receive and be aware of the implications.
4. Transitional duty is a fundamental part of getting your injured employee back on the job. Do your unions have policies on working with an injury or post-surgery?
A good manager obtains union buy-in by incorporating their opinions into the process whenever feasible. (workersxzcomp) It is not possible to make everyone happy one hundred percent of the time, but an attempt at seeing issues from all sides is always appreciated and emanates the feeling of control.
Proceeding without any union input when implementing a policy as critical as workers’ compensation only presents an “us-them” mentality which can lead to higher long-term costs.
Further, it is suggested the company identify “collateral source benefits” – those perks your company or union offers which may enrich an employee who is not working and develop work-around strategies to facilitate return to work.
Author: Robert Elliott, J.D.
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Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
MYTH: If you have unions, you will never lower your workers compensation costs.
REALITY: While implementing a workers compensation program in a unionized company can be more challenging, it’s usually not. Begin with a positive, cooperative, win-win attitude. Sit down and discuss the situation with the bargaining committee; educate them about workers’ comp and the need for transitional duty and they will usually facilitate the program. They need to be aware that staying out of work for extended periods of time normally does not help an injured employee heal; in fact, the employee’s health often deteriorates because mental health can be compromised by depression once the employee loses his daily routine and social network.
Focus on the economic consequences and interests of the membership. For instance, if the majority of members are young, emphasize how the extra money will help them pay college tuition for their children. If members are older, emphasize how the savings will help their retirement accounts. Sometimes they will have very creative ideas about how a new transitional duty program can work well, and they will make you aware of collateral source benefits which need to be removed. In one instance recently, the union was angry with management because management had not tried to do more to stop several fraudulent claims.
For more cost-saving tips go to WC Cost Reduction Tips.
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Workers’ Comp Kit® is a web-based online Assessment, Benchmarking and Cost Containment system for employers. It provides all the materials needed to reduce your costs significantly in 85% less time than if you designed a program from scratch.
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Open-ended transitional duty policies can be problematic and should have a start point and an end point. For example, transitional duty positions should go no longer than 6 months without a special extension or waiver of the length of the assignment. HR, Legal and Risk Management should work together on the Transitional Duty Policy. Focusing on gradually increasing capacity, at some point the TD job should end. Each company will have a different length depending on circumstances, but 6 months is about average for what most companies have.
Three reasons your TD Policy should have an end-date:
1- The unions may have a problem with transitional duty assignments if they are not temporary because they will argue that you have created a new position which is not allowed by the labor agreement. For example, with a part-time employee whose transitional duty assignment lasts for over a year, it is difficult to argue that that is not “a job” if someone has performed the task for over a year.
2- For ADA purposes, it is difficult to argue the company could not create a new job as an accommodation with those duties if they just let the person work under those conditions for over a year.
3- And, there may be an issue with health insurance being required to be paid during a longer time frame. In some states, an employer is obligated to provide health insurance if a TD job lasts for a long time.
For more cost-saving tips go to WC Cost Reduction Tips.
Show the REAL cost of workers’ comp with the Real Cost Calculator.
Workers’ Comp Kit® is a web-based online Assessment, Benchmarking and Cost Containment system for employers. It provides all the materials needed to reduce your costs significantly in 85% less time than if you designed a program from scratch.
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 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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