Noted WC writer Peter Rousmaniere writes that Vermont is set to pass a radical approach to dealing with the independent contractor problem in workers comp. “The problem is this: many businesses in the past, across the country, have chosen to define their workers as independent contractors, thereby saving themselves serious money in workers comp insurance, unemployment compensation insurance, and other benefits mandatory or voluntary, and leaving their workers exposed to the elements .(There are also other state labor protections that come to play),” he says.[WCx]

 

 

“The house bill 762 has a provision expressly designed to let workers define themselves as independent contractors!” he notes. “The intent comes out in the hearings: to let employers such as contractors hire them without having to worry about the risk of the engagement being seen as employment — even if the engagement looks, talks and walks like employment.”

 

 

Follow this link to see a summary of state and world news in the WC industry. This edition includes information on North Carolina’s reforms, Retaliatory Discharge and an experts year-in-review among many other “goodies.” Check it out!

Danielle Lisenbey, chief operating officer for the Medical Management Services of Broadspire announced its first annual Rx Summit here in Sunrise March 22. As a leader in the industry, Broadspire first Pharmacy Issues Summit should prove to be helpful. They write, “The purpose of the meeting is to bring thought leaders from various organizations together to discuss relevant topics and issues surrounding pharmacy benefits in the workers compensation setting. The intent is not to share the specifics of what various companies are doing, but rather to focus on the global industry issues themselves and what may be the possible trends and developments for the future. One key objective of the program will be to help to identify and define common threads that run through all components of the industry – across claimants, payors, employers and carriers. Defining some of these commonalities will help the consumer to maneuver through the market. This will be an opportunity to brainstorm and share ideas amongst industry peers that can help to influence positive impacts for all.”

 

 

Email Mjaynes@choosebroadspire.com by March 15, 2012 for more information. The Summit is by invitation only.

 

 

Texas Department of Insurance, Division of Workers' Compensation changed its site this week. The redesign of its homepage on the TDI website at http://www.tdi.texas.gov/wc/indexwc.html.

 

 

“In an effort to make online resources for workers’ compensation system participants more user friendly, the TDI-DWC homepage redesign features a new tab style menu with three sections to assist system participants in accessing workers’ compensation information. Topics A-Z features an alphabetical listing of workers’ compensation-related subject matter that directly links to website content. Online Services features direct links to services, including: safety violation reporting, employer coverage verification and attorney fee processing.

Resources features direct links to resources, including the Texas Labor Code, TDI-DWC rules, calendar of events and training and TDI-DWC forms,” they write.

 

 

There are many other helpful changes. Go take a look!

 

 

The Workers Compensation Research Institute (WCRI) and the International Association of Accident Boards and Commissions (IAIABC) just released a joint study, Workers’ Compensation Laws as of January 2012.

 

 

This tool allows users to compare WC system laws across U.S. and Canada. More information is available here.

 

 

WCRI calls it, “An essential tool for researching and understanding the distinctions among workers’ compensation laws in all U.S. states and certain Canadian provinces.”

 

 

To prevent age discrimination and sexual harassment complaints, managers need guidance. EEO complaints can be avoided.

 

 

This new guide is updated with changes in the ADA and the Genetic Information Nondiscrimination Act. Follow this link to learn more: EEO and Federal Managers: Following the Principles, Avoiding Complaints. The book could be handed out to all managers to get everyone up to speed on their EEO responsibilities.

 

 

EEO Responsibilities

Sex Discrimination and Sexual Harassment

Race and Color Discrimination

National Origin Discrimination

Age Discrimination

Religious Discrimination and Accommodation

Disability Discrimination and Accommodation

Toward a Diverse Federal Workplace

 

 

 

 

 

 

Posted in Professional Development Issues |

The U.S. Equal Employment Opportunity Commission (EEOC) has sued a national insurer claiming the firm violated federal law by refusing to hire a North Carolina man after he disclosed he was participating in a methadone treatment program for drug addiction.

 

The suit was filed in U.S. District Court in Raleigh against United Insurance Co. of America, according to EEOC attorney Lynette Barnes. (WCxKit)

 

 

The complaint argues the firm violated federal disability discrimination law by refusing to hire Craig Burns, 30, who applied for a job in the firm’s Raleigh office in December of 2009. The firm made a conditional offer of employment to Burns the following month, depending upon his passing a drug test.

 

 

The test showed the presence of methadone in his system, so Burns submitted a letter to the firm from his treatment provider saying he was participating in a supervised methadone treatment program and taking legally prescribed medication as part of the treatment, the complaint said. Upon receiving this information, United Insurance notified Barnes he was not eligible to be hired and withdrew the employment offer.

 

 

According to Barnes, the action violates the Americans with Disabilities Act, which protects employees and applicants from discrimination based on their disabilities. A recovering drug addict is covered under the act. (WCxKit)

 

 

The suit seeks back pay, compensation for financial loss, along with punitive damages.

 

 

Posted in EEOC Discrimination Laws, Legal Doctrines, Medical Issues |

The Columbus (Ohio) Fire Division battalion chief who was the first female in that position has come up short in the discrimination lawsuit she filed against the city in federal court.

 

 

According to The Columbus Dispatch, U.S. District Judge Michael Watson dismissed Yolanda Arnold's claims that she had been harassed due to the fact she is black and that she had suffered retaliation because of her discrimination claims. Arnold also claimed she was humiliated and embarrassed. (WCxKit)

 

 

Watson ruled recently that Arnold did not offer specific proof of her allegations in three years of court proceedings that included a number of depositions of witnesses and presentations of exhibits like emails, newspaper stories and other documents.

 

 

According to Watson, a large amount of the evidence was hearsay, which was not admissible direct evidence of discrimination.

 

 

Arnold, 55, who is still a Columbus fire battalion chief, said recently that she is appealing the judges decision to dismiss her suit.

 

 

The lawsuit originated from allegations by city building inspectors in 2004 that fire inspectors under Arnolds command were missing inspections and collecting overtime pay.

 

 

Separate investigations by the Columbus police and fire divisions detected no wrongdoing. A third investigation, by a private attorney, reported management problems in the Fire Prevention Bureau, which Arnold oversaw, but it also found that claims of racial discrimination in the bureau were unfounded.

 

 

At the time of the third investigation, Fire Chief Ned Pettus accused Arnold of lying to investigators and suspended her for a week. She also was removed from the Fire Prevention Bureau.

 

 

Arnold filed the lawsuit in January 2008. Watsons ruling was in response to a request from the city for a summary judgment against Arnold.

 

 

Ten other Columbus firefighters who were employed as fire inspectors filed three similar discrimination lawsuits against the city in federal court. (WCxKit)

 

 

Watson dismissed a pair of those suits on March 31, the day he also threw out Arnolds. A third is pending.

 

  

 

 

 

Posted in EEOC Discrimination Laws, Legal Doctrines, WC 101 |

Arizona-based High-Tech Institute Inc., doing business as Anthem College Online, will pay $260,000 as part of a settlement of a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.

 

 

In its suit in U.S. District Court for the District of Arizona (Civil Action No.CV-09-2041-ROS), the EEOC charged that Anthem College subjected female employees to repeated sexual harassment by supervisors. (WCxKit)

 

 

According to the EEOC, six female admissions representatives working at the Phoenix, Ariz., location were frequently sexually harassed by three supervisors.  EEOC allegations included that the supervisors engaged in unwanted sexual touching and comments, writing sexually suggestive e-mails and soliciting sex from employees during unwelcome visits to the their homes in the early morning hours. Some of this abusive behavior was witnessed by other Anthem College employees, the EEOC said.

 

 

The EEOC maintained that Anthem College knew or should have known about and tolerated this sexually hostile work environment caused by its supervisors. The agency said the company’s former human resource manager wrote that Anthem College employees were fearful to come forward because an alleged harasser was seen drinking and socializing with upper management and that there was blatant disrespect to employees and rampant poor management.

 

 

According to the EEOC, the company unreasonably delayed removing a class member from under the supervision of an alleged harasser who, the company’s own former human resources manager testified, was a “psychopath.” The EEOC argued that despite Anthem College’s knowledge about the harassment, the company failed to take reasonable steps to investigate and remedy the harassment.

 

 

“Employees who have an official or strong duty to communicate to management are considered part of management,” said EEOC Regional Attorney Mary Jo O’Neill of the Phoenix District Office, which originated the legal action. “Here, there was a breakdown in reporting by persons, whose job descriptions required them to report any issues affecting the normal operation of the admissions department, including sexual harassment. They failed to do so, with serious consequences.”

 

 

In addition to the settlement requiring Anthem College to pay $260,000 to the former employees, Anthem College also must investigate any further complaints of sexual harassment, provide training for managers and supervisors on conducting sexual harassment investigations and post a notice that harassment of Anthem College employees will not be tolerated. (WCxKit)

 

 

EEOC Phoenix District Director Rayford Irvin added, “We insist that companies fulfill their obligation to protect employees from sexual harassment and provide the necessary training to ensure this protection."

 

 

Posted in EEOC Discrimination Laws, Safety and Loss Control |

Wal-Mart has agreed to pay $440,000 to a group of Hispanic employees in Fresno who say they were subjected to ethnic slurs and derogatory remarks by a co-worker.

 

 

The settlement was announced recently by the Equal Employment Opportunity Commission.

 

 

The EEOC sued Wal-Mart and its affiliate Sam's Club in 2009, alleging the workers were being harassed and that Wal-Mart failed to halt the mistreatment in a timely manner a charge Walmart has denied. (WCxKit)

 

 

At least nine employees of Mexican descent and one, who is married to a Mexican, claim they endured ethnic slurs on a daily basis by a co-worker, who was also Hispanic. The workers, who provided food samples to customers, complained in April 2006, but no immediate action was taken, EEOC officials report.

 

 

Instead, the harassment intensified, according to Christine Park-Gonzalez, an EEOC program analyst in Los Angeles.

 

 

It was not  until the workers filed a complaint with EEOC in October that Sam's Club fired the harasser in December 2006.

 

 

According to Wal-Mart spokesman Greg Rossiter, the company fired the worker once the full extent of the allegations was brought to the company's attention.

 

 

As part of the settlement, Wal-Mart also agreed to make changes in how it deals with these issues at its Fresno and Bakersfield Sam's Club stores. (WCxKit)

 

 

The company committed to a three-year agreement to provide training to employees regarding anti-discrimination laws; teach managers how to investigate and report harassment complaints; and create a tracking system for complaints.

 

 

 

 

 

Posted in California Workers Comp, EEOC Discrimination Laws |

The EEOCs final regulations to implement the ADA Amendments Act (ADAAA) were published in the Federal Register recently (3/25/11) and go into affect May 25, 2011. The final regulations reflect significant changes in the interpretation of the ADAs definition of “disability” but not in the actual definition of the term "disability."

 

 

The ADAs definition of the term “disability” has not changed. The ADA believes a disability to be a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. However, the law makes major changes in how those terms are interpreted:

 

1.      An impairment does not need to prevent or significantly restrict performance of a major life activity to be considered a disability.

 

2.      What is considered an impairment must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA

 

3.      “Mitigating measures,” such as medication and assistive devices like hearing aids, must not be considered when determining whether someone has a disability (with the exception of ordinary eyeglasses or contact lenses.)

 

4.      The term “major life activities” includes “major bodily functions.”

 

5.      Impairments that are episodic, such as epilepsy, or in remission, such as cancer, are disabilities if they would be substantially limiting when active.

 

 

The final regulations will go into effect 60 days from March 25, so on May 25.

 

 

 

 

 

Posted in ADA (Americans with Disabilities Act), EEOC Discrimination Laws |

The Minnesota Department of Human Services has been ordered to pay $467,000 to resolve age-discrimination claims filed on behalf of 29 individuals who were turned down for employer contributions for retiree health and dental insurance.

 

 

The Star-Tribune reports the consent decree entered by U.S. District Judge David Doty also mandates the department to pay future premium costs for anyone still entitled to receive them. (WCxKit)

 

 

The U.S. Equal Employment Opportunity Commission (EEOC) had sued the department over the plan and contended that an employee retiring at 55 got employer contributions for health and dental insurance until 65, but an employee retiring after 55 received no such contributions.

 

 

Ten months ago, a similar order was issued against the Minnesota Department of Corrections. In that case, the Minnesota Department of Corrections was told it must pay $724,000 to 35 retirees. (WCxKit)

 

 

 

 

 

 

 

Posted in EEOC Discrimination Laws, Employment Law Issues, WC 101 |

Employers can be held liable for discriminatory conduct even if the individual responsible for the decision was not discriminatory but relied to a degree on those who were, the U.S. Supreme Court ruled recently, according to www.BusinessInsurance.com

 

 

The courts unanimous ruling in Vincent E. Staub vs. Proctor Hospital backs what is known as the “cats paw” theory of liability. (WCxKit)

 

 

According to the opinion, Mr. Staub, an angiography technician at Proctor Hospital in Peoria, Ill., was part of the U.S. Army Reserve, which mandated he attend drills one weekend a month and train on a full-time basis two to three weeks yearly.

 

 

Business Insurance reported a pair of supervisors was allegedly hostile to Staubs military obligations, and one allegedly made a false complaint to the hospitals VP of human resources, who partially relied on that information to fire Staub in 2004.

 

 

Staub sued the hospital through the Uniformed Services Employment and Re-Employment Rights Act of 1994, alleging his firing was motivated by hostile intent toward his military obligations. A jury deemed that military status was a motivating factor in Staubs discharge and awarded him $57,640 in damages.

 

 

In a turn of events, the 7th U.S. Circuit Court of Appeals in Chicago threw out the case, claiming that a cats paw case “could not succeed unless the no decision-maker exercised such ‘singular influence' over the decision-maker that the decision to terminate was the product of ‘blind reliance,' which was not the case involving this matter.

 

 

“Because the undisputed evidence established that (the HR VP) was not wholly depending on the advice of (the supervisor), the court held that Proctor was entitled to judgment,” the 7th Circuit ruled.

 

 

However, the Supreme Court overturned the appeals court. Proctor “contends that the employer is not liable unless the de facto decision-maker…is motivated by discriminatory animus,” the high court stated.

 

 

“If a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA,” the Supreme Court ruled.

 

 

The court ruled 8-0 in favor of overturning the 7th Circuit opinion, with Justices Samuel Alito Jr. and Clarence Thomas backing a concurring opinion, and Justice Elena Kagan not taking part in the decision. (WCxKit)

 

 

The high court remanded the case to the 7th Circuit with instructions to determine whether to reinstate the jury verdict or to seek another trial.

 

 

 

 

 

 

Posted in EEOC Discrimination Laws, Employment Law Issues, Legal Doctrines, WC 101 |

The U.S. Department of Labors Mine Safety and Health Administration has negotiated a settlement agreement with Comunidad Agricola Bianchi Inc. of San Juan, Puerto Rico, in a discrimination case involving a miner employed by the companys operation in Rincon, Puerto Rico.

 

 

Jose A. Chaparro was fired from his job shortly after cooperating in an MSHA hazard complaint investigation at the mine.(WCxKit)

 

 

In August 2009, MSHA received an anonymous hazard complaint raising concerns about safety issues at the mine, including details about an unreported June 2009 accident at the mine involving Chaparro. As a result, MSHA launched a hazard complaint investigation. The same day that MSHA spoke with Chaparro about his accident, the mine superintendent fired him.

 

 

In a complaint filed with the Mine Safety and Health Review Commission, MSHA sought a finding that Chaparro was unlawfully discriminated against and discharged in violation of Section 105(c)(1) of the Federal Mine Safety and Health Act of 1977, which states that miners, their representatives and applicants for employment are protected from retaliation for engaging in safety and/or health-related activities, such as identifying hazards, asking for MSHA inspections or refusing to engage in an unsafe act.

 

 

The complaint also sought Chaparros reinstatement to his position or a comparable one, $6,000 in back pay, all employment benefits, all medical and hospital benefits, and any and all other damages suffered and incurred by Chaparro as a result of the discriminatory discharge, as well as a $15,000 civil money penalty.

 

 

Following a hearing in February 2010, a judge ordered Chaparro temporarily reinstated to his job at the mine. In a second amended complaint, MSHA brought a claim of post-reinstatement retaliation against Comunidad Agricola Bianchi Inc. and three individual representatives of the mine.(WCxKit)

 

 

In settlement, the company agreed to permanently reinstate Chaparro to his job at the mine and to pay the full $6,000 in back wages due to Chaparro, as well as the full $15,000 penalty. The mine operator also agreed that it would not unlawfully discriminate against any miner in its employ for engaging in protected activity.

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. See www.LowerWC.com for more information.  
Contact:  Info@ReduceYourWorkersComp.com.

Posted in Legal Doctrines, Safety and Loss Control |

A 55-year-old Iowa woman will receive more than $2.3 million from her lawsuit against her employer.

 

 

According to the Associated Press, the Monroe County jury verdict came in the case filed by Debbie Erwine, of Batavia, against UGL Services Unicco Operations Co. and a past supervisor. WCxKit

 

 

Erwines lawsuit alleged she was subjected to sex discrimination while overseeing maintenance and cleaning crews at the Cargill plant in Eddyville.

 

 

According to one of the documents, Erwines supervisor demoted her in the summer of 2008 due to the fact he "needed a man in that position so that he would be able to understand the mechanical aspects."

 

 

Erwine was terminated in December 2008. She sued a little less than one year later.

 

 

According to a UGL spokeswoman, Erwine was let go for violating company policy. (WCxKit)

 

 

 

 

 

 

 

Posted in EEOC Discrimination Laws, Employment Law Issues, Settling WC Claims, WC 101 |