Legal Corner

ADA

Inflexible maximum leave policy leads to $550,000 settlement

Delaware-based Connections CSP provides services in correctional and other state facilities. The EEOC determined the company fired people with disabilities who needed additional unpaid leave beyond the required 12 weeks under the Family and Medical Leave Act and did not provide other requested reasonable accommodations. The company agreed to pay $550,000 in monetary relief to five former employees and to implement and disseminate a new, reasonable accommodation policy to all employees, among other provisions.

Workers’ Compensation

Injured employee not entitled to TDI for wage loss to go to medical appointments – California

Originally an unpublished decision, Skelton v. WCAB, involved an employee who suffered on-the-job injuries in 2012 and 2014. She continued to work full-time, but took time off to go to medical appointments, using sick and vacation leave. When her leave was exhausted, she lost wages for the time away from work and sought temporary disability indemnity (TDI) benefits to reimburse her wage loss.

The decision of a WCJ that she was not entitled to benefits was upheld by the Workers’ Compensation Appeals Board and the 6th District Court of Appeals. The court reasoned that once she had returned to work full-time, her wage loss was not a result of an incapacity to work, but rather a scheduling and leave policy issue.

Saturdays not counted as a working day in UR decisions – California

In Puni Pa’u v. Department of Forestry the Workers’ Compensation Appeals Board ruled that Saturdays don’t count as working days when determining whether a utilization review decision was timely.

Workers’ comp, not CGL, must cover injury – Florida

In Endurance American Specialty Insurance Co. v. United Construction Engineering Inc., Carlos Marroquin Lopez, the U.S. Court of Appeals for the Eleventh Circuit affirmed a district court’s decision that a commercial general liability (CGL) insurance policy did not cover injuries sustained by a worker in the course of his job but, rather, that the worker’s injuries fell under Florida’s workers’ compensation law. The general commercial liability policy issued to Weston-based United Construction Engineering Inc. had two exclusions, one that specifically excluded injuries that would be covered by a workers’ compensation claim and a second that excluded bodily injuries of workers injured in the course of their employment.

United Construction hired a subcontractor for a roofing repair project and neither carried workers’ comp insurance when a temporary employee slipped and fell into a pool of hot tar on the job site. The employee sued United, arguing that the use of the word employee in the policy created an ambiguity such that the employee exclusion does not apply. The court, however, noted this argument did not address the workers’ compensation exclusion that independently nixed the claim.

Teacher receives benefits for injuries incurred performing tasks not in job description – Massachusetts

In Boston Retirement Board v. Contributory Retirement Appeal Board, an Appeals Court affirmed a Superior Court ruling granting accidental disability retirement benefits to a teacher. In Fall 2009, she incurred injuries from lifting and carrying a computer to her classroom, moving tables, and breaking up an altercation among several students. The Boston Retirement Board argued the tasks she was performing were not part of her job duties and did not occur during working hours, therefore, they were not compensable.

The court disagreed. It noted even though the specific activities were not mentioned in the job description, teachers were required to maintain a classroom that was attractive and assume general responsibility for the welfare of the students. Moreover, although the incidents occurred before school hours or at lunch, she was engaging in the performance of her duties. Thus, her disability was “the natural and proximate result” of personal injuries sustained in the course of her job duties.

Reimbursement for overpayment possible without showing fraud – Michigan

In Fisher v. Kalamazoo Reg’l Psychiatric Hosp, the employer overpaid benefits for approximately three months following an injury of a worker and applied for reimbursement. The Compensation Appellate Commission has repeatedly held that when an employer has voluntarily but mistakenly overpaid, it had to show fraud on the part of the injured employee. The court of appeals, however, said the commission exceeded its statutory authority in setting a fraud requirement. The legislature had promulgated the right of reimbursement for overpayment of workers’ compensation benefits, allowing recovery of the overpayment made within one year of the recoupment action and that should govern. Thus, the Court reversed the denial of an employer’s petition for reimbursement.

Disability benefits for PTSD and wife’s nursing services for truck driver upheld – Missouri

In Reynolds v. Wilcox Truck Line Inc., an appellate court affirmed a Labor and Industrial Relations Commission decision that awarded worker’s compensation benefits to a truck driver whose tractor-trailer overturned and caught fire on the side of a freeway. While he escaped with no physical injuries and briefly returned to work, he later was diagnosed with post-traumatic stress disorder (PTSD) and was rated as permanently and totally disabled. His request for nursing services was denied and his wife left her job to provide daily home care.

The Commission overturned an ALJ denial of nursing services. While the employer argued that the employee was capable of other types of employment, the appellate court noted that a worker does not need to be “completely inert or inactive” to qualify as permanently and total disabled, and found that the employer failed to consider a vocational rehabilitation report finding the employee “totally vocationally disabled from employment.”

Noting that the law allows for compensation for nursing services, there is no statutory definition of nursing, and the phrase “nursing” puts the focus on the type of service rendered, not the person providing it, the Court found the wife’s services compensable.

$1.1 million settlement for tree trimmer from Mexico – Missouri

The $1.1 million settlement was reached fourteen years after a tree trimmer from Mexico, who was working on an agricultural visa, was paralyzed in a fall just three weeks after beginning work. He returned to Mexico and received $200 a week in temporary disability payments for a total of almost $150,000, plus medical expenses of over $2.3 million. The settlement provides $1.1 million, including an immediate payment of $500,000, plus $3,400 monthly for 15 years.

“Attachment to Labor Market” amendment not always retroactive – New York

In 2017, the statute was amended to relieve some workers classified as permanently partially disabled of having to demonstrate an ongoing attachment to the labor market to continue receiving wage replacement benefits. In Matter of Pryer v. Incorporated Village of Hempstead, a worker injured his back in 2012, was classified as having a permanent partial disability and an 85% loss of wage-earning capacity and did not return to work. The Workers’ Compensation Board (WCB) discontinued benefits in August 2014, finding he was not sufficiently attached to the labor market.

After the amendment passed, he filed a request for further action and a WCLJ determined the amendment applied and awarded benefits. However, the WCB and an appellate court overturned, noting that where the Board specifically determined, prior to the effective date of the amendment, that the worker failed to demonstrate continued attachment to and had voluntarily withdrawn from the labor market, the amendment did not apply.

Police officer suicide not compensable for survivor benefits – New York

In Matter of Delacruz v. Incorporated Village of Freeport, an Appellate Division of the Supreme Court ruled the family of a police officer who took her own life are not eligible for survivor benefits because it remains unproven that the officer’s suicide was related to a mental injury caused by work. While a WCLJ approved benefits, the decision was reversed by the WCB and upheld by the court. Although the suicide occurred while she was on duty, the court noted that other factors, such as marital counseling and stress and depression during the holiday season, may have contributed to her suicide.

Perception theory not valid in retaliatory discharge suit related to workers’ compensation – Pennsylvania

In Bamat v. Glenn O. Hawbaker, Inc., a federal district court construing Pennsylvania law, noted that the “perception theory” had been recognized in retaliation claims alleged under the ADA, the Age Discrimination in Employment Act (ADEA), and the Pennsylvania Human Relations Act (PHRA). However, the theory is insufficient for a retaliatory discharge case based on a workers’ comp claim. It is not enough for a discharged worker to show that the former employer believed the worker was going to seek workers’ compensation; the employee must either have filed a claim for benefits or expressed his intent to do so.

Sixth Circuit overturns ruling that federal immigration law preempted state law on retaliatory discharge – Tennessee

In Torres v. Precision Industries, the Sixth Circuit Court of Appeals reversed a decision of the U.S. District Court that the retaliatory discharge provision of the state’s Workers’ Compensation Act was preempted by the Immigration Reform and Control Act of 1986 (“IRCA”). According to the Appeals Court, it is necessary to first determine if state law had been violated in the first place. The case was vacated and remanded.

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Important information on the classification of independent contractors vs. employees

Department of Labor opinion letter

Issued April 29, the opinion letter addresses whether a service provider for a virtual marketplace company is an employee of the company or an independent contractor under the FLSA. It concludes that the workers who provide services to consumers through this company’s virtual platform are independent contractors, not employees of the company. To make this determination, the Department’s Wage and Hour Division applied its longstanding and unchanged six-factor balancing test, derived from Supreme Court precedent:

  • The nature and degree of the potential employer’s control
  • The permanency of the worker’s relationship with the potential employer
  • The amount of the worker’s investment in facilities, equipment, or helpers
  • The amount of skill, initiative, judgment, or foresight required for the worker’s services
  • The worker’s opportunities for profit or loss and
  • The extent of integration of the worker’s services into the potential employer’s business

Other factors also may be considered. The DOL “does not determine employee status by simply counting factors but by weighing these factors in order to answer the ultimate inquiry of whether the worker is ‘engaged in business for himself or herself’ or ‘is dependent upon the business to which he or she renders service,'” stated the letter.

While the opinion deals with a specific company, wages, and fair labor standards and is not legally binding, legal experts suggest it has an effect beyond the employer addressed in the letter. Under the Trump administration there is more flexibility in defining independent contractors and the likelihood that some employer/employee relationships would be challenged is lower.

The key issue is control. When classified as independent contractors, workers should be able to control their own schedules, work in other jobs or businesses, choose whether to accept a project, and not receive extensive training.

Cautionary note: The opinion letter is based on the facts presented by the company and these facts may not be true of other gig economy workers. It does confirm employers must conduct the six-factor test when confronted with a classification question. Further, employers still must abide by laws in states such as California, Massachusetts, Connecticut and New Jersey that are more restrictive.

National Labor Relations Board memorandum

The National Labor Relations Board (NLRB), handed an important victory to Uber when it determined that the company’s drivers are contractors, not employees. In the first major policy action concerning the gig economy, the NLRB’s move relates primarily to unionization and other collective activities.

The decision was outlined by the board’s general counsel in a memorandum dated April 16, but made public in mid-May. In effect, the action tells gig economy workers not to report labor abuses to the Board because they are outside its jurisdiction. This judgment and the opinion letter cited above reverse the stance of the Obama administration that people who found work through apps could be considered employees. While the memo can be reversed by future general counsels, it carries considerable weight in how the Board enforces the law.

California: Independent contractor classification dealt another blow – ABC test must be applied retroactively

About a year ago, the California Supreme Court issued a groundbreaking decision when it adopted a new legal standard known as the “ABC Test,” making it much more difficult for businesses to classify workers as independent contractors in Dynamax vs The Superior Court of Los Angeles County. In a subsequent case, Garcia v. Border Transportation Group, a Court of Appeals held that the new test is limited to claims arising under the California Wage Orders. A May 3 letter from the California DLSE confirmed that the Dynamex decision extends to obligations imposed by the Industrial Welfare Commission wage order, making employers who misclassify workers responsible for California Labor Code obligations such as overtime, minimum wage, reporting time pay, record-keeping, business expense reimbursement, and meal and rest periods.

Moreover, the case was remanded, and pending legislation (AB5) would extend the reach of Dynamex’s ABC independent contractor assessment to unemployment and disability insurance and workers compensation.

Recently, the U.S. Court of Appeals for the Ninth Circuit held that the “ABC” test, used in the employee-versus-independent contractor analysis in cases involving IWC Wage Orders, must be applied retroactively. The ruling in Vazquez v. Jan-Pro Franchising Int’l Inc. means that the “ABC” test not only will be applied to cases going forward, but also to disputes dating back to before the new test was enacted. Based on California’s statute of limitations, employers could be liable for misclassifying workers as contractors going back four years before the 2018 decision.

The decision has significant implications for businesses using a franchise model or independent contractor model, including gig economy companies, since employees have more rights and benefits than independent contractors. The court essentially held that the “ABC” test applies to both a franchisee and the parent franchisor when deciding whether a group of workers are formal employees, pointing to increased exposure to liability for franchisors.

The unanimous federal appeals court ruling vacated an earlier dismissal of the complaint, and remanded the issue back to the lower district court, with instructions to follow the test issued in the Dynamex ruling. California employers who routinely enter into independent contractor arrangements with individuals should promptly and carefully review the status of those workers.

Note: AB5 advanced May 29 with the state Assembly passing the legislation 59-15

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com