Workers' Compensation

Thursday, January 16, 2014

NLRB Office of the General Counsel Issues Complaint against Walmart

The National Labor Relations Board (NLRB) Office of the General Counsel has issued a consolidated complaint against Walmart alleging that the company violated the rights of its employees as a result of activities surrounding employee protests in 13 states.

The Office of the General Counsel informed Walmart that complaints were authorized in November of 2013, but withheld issuing the complaints to allow time for settlement discussions. The discussions have not been successful and a consolidated complaint has issued regarding some of the alleged violations of federal law. More than 60 Walmart supervisors and one corporate officer are named in the complaint.

Cases were consolidated to avoid unnecessary costs or delay. Walmart must respond to the complaint by January 28, 2014. No hearing date has been set. The Office of General Counsel has authorized or issued complaints in other Walmart cases and additional charges remain under investigation.

The National Labor Relations Act guarantees the right of private sector employees to act together to try to improve their wages and working conditions with or without a union. The consolidated complaint involves more than 60 employees, 19 of whom were discharged allegedly as a result of their participation in activities protected by the National Labor Relations Act. The Office of the General Counsel alleges that Walmart violated the Act when:

During two national television news broadcasts and in statements to employees at Walmart stores in California and Texas, Walmart unlawfully threatened employees with reprisal if they engaged in strikes and protests.

At stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington, Walmart unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.

At stores in California, Florida, and Texas, Walmart unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities

Former Texas Workers' Compensation Director Pleads Guilty to $500,000 Fraud

Former Texas Association Of School Boards (TASB) Workers Compensation Claims Administration Director Pleads Guilty To Mail Fraud Charges

In Austin today, Herman G. Wilks, former Department Director of Workers’ Compensation Claims Administration for the Texas Association of School Boards, Inc. (TASB), pleaded guilty to stealing over $500,000 from the TASB’s Risk Management Fund announced United States Attorney Robert Pitman and Federal Bureau of Investigation Special Agent in Charge Armando Fernandez, San Antonio Division.

The TASB is a voluntary, non-profit, statewide educational association that serves and represents local Texas school districts, regional education service centers, community colleges, and tax appraisal districts. One of the products and services offered by TASB to its members is the TASB Risk Management Fund. The TASB Risk Management Fund provides specific coverage to members through their requisite financial contributions into the risk management pool. This coverage can then apply with regard to unemployment compensation claims, workers' compensation claims, auto, liability and property programs. Wilks’ TASB duties included the supervision of setting up member school districts' workers' compensation claims, adjudicating medical bills and carrying out the utilization, management and pre-authorization functions required by the workers' compensation statutes. Pursuant to his title and area of responsibility at TASB, Wilks had control over and...

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Supreme Court case highlights U.S. labor agency political divide

Today's post was shared by Steven Greenhouse and comes from www.reuters.com

WASHINGTON/NEW YORK (Reuters) - When the U.S. Supreme Court hears arguments on Monday in a case involving soda bottler Noel Canning Corp., presidential appointment power will be the main dispute, but the case will also put on display one of Washington's most politically polarizing agencies - the National Labor Relations Board.

Created nearly 80 years ago to supervise union elections and protect workers' rights to organize, the NLRB is a battleground for pro-labor Democrats and pro-management Republicans.

Deep disagreement between the two sides over the NLRB's role - and over organized labor itself - makes disputes involving the board uncommonly bitter and subjects its agenda to constant reshaping, depending on which party controls the White House.

"It's no accident ... that this major constitutional showdown is occurring over appointments to the board," said AFL-CIO General Counsel Craig Becker, a former board member.

Monday's case began as a labor dispute. The NLRB found in February 2012 that Noel Canning, a Pepsi bottler in Yakima, Washington, had reneged on a verbal contract during union negotiations. The company appealed to the courts, attracting the support of the U.S. Chamber of Commerce, conservative interest groups and Republican leaders in Congress. The case evolved into a constitutional challenge to the president's power to make appointments to key posts without Senate confirmation.

At issue are "recess appointments" made in January 2012 by...

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How the West Virginia Spill Exposes Our Lax Chemical Laws

Today's post was shared by Mother Jones and comes from www.motherjones.com

Site of the spill on the Elk River in West Virginia Foo Connor/Flickr
The West Virginia chemical spill that left some 300,000 people without access to water has exposed a gaping hole in the country's chemical regulatory system, according to environmental experts.
Much the state remains under a drinking-water advisory after the spill last week into the Elk River near a water treatment facility. As much as 7,500 gallons of the chemical 4-methylcyclohexane methanol, which is used in the washing of coal, leaked from a tank owned by a company called Freedom Industries.
A rush on bottled water ensued, leading to empty store shelves and emergency water delivery operations. According to news reports, 10 people were hospitalized following the leak, but none in serious condition.
The spill and ensuing drinking water shortage have drawn attention to a very lax system governing the use of chemicals, according to Richard Denison, a senior scientist at the Environmental Defense Fund who specializes in chemical regulation. "Here we have a situation where we suddenly have a spill of a chemical, and little or no information is available on that chemical," says Denison.

West Virginia store shelf.

The problem is not necessarily that 4-methylcyclohexane methanol, or MCHM, is highly toxic. Rather, Denison says, the problem is that not a great deal about its toxicity is known. Denison has managed to track down a description of one 1990 study, conducted by manufacturer Eastman Chemical,...

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Deal reached on tobacco firm corrective statements

Today's post was shared by FairWarning and comes from www.washingtonpost.com

RICHMOND — The nation’s tobacco companies and the federal government have reached an agreement on publishing corrective statements that say the companies lied about the dangers of smoking and requires them to disclose smoking’s health effects, including the death on average of 1,200 people a day.
The agreement, filed Friday in U.S. District Court in Washington, follows a 2012 ruling ordering the industry to pay for corrective statements in various advertisements. The judge in the case ordered the parties to meet to discuss how to implement the statements, including whether they would be put in inserts with cigarette packs and on Web sites, TV and newspaper ads.
The court must approve the agreement, and the parties are discussing whether retailers will be required to post large displays with the industry’s admissions.
The corrective statements are part of a case that the government brought in 1999 under the Racketeer Influenced and Corrupt Organizations Act. U.S. District Judge Gladys Kessler ruled in that case in 2006 that the nation’s largest cigarette makers concealed the dangers of smoking for decades. The companies involved in the case include Richmond-based Altria Group, owner of the biggest U.S. tobacco company, Philip Morris USA; No. 2 cigarette maker, R.J. Reynolds Tobacco, owned by Winston-Salem, N.C.-based Reynolds American; and No. 3 cigarette maker Lorillard, based in Greensboro, N.C.
Under the agreement with the Justice Department,...

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Wednesday, January 15, 2014

'Bakers contract cancer from asbestos in old ovens': tv programme

There have been 38 cases of bakers contracting cancer from the asbestos contained in old ovens since 2000, according to the institute of asbestos victims IAS.

The figure, to be included on Tuesday evening in tv programme Zembla, follows Zembla's claims in last week's programme that the Bakkersland bakery group had problems with asbestos in three of its factories over the past two years and had to recall a consignment of bread.

Eugene Scholten, chief executive of Bakkersland, told RTL news last week there had never been direct contact between bread and the asbestos used as insulation in the company's ovens.
However, the IAS now says 38 bakers have told them they contracted cancer from asbestos. Zembla says this is as a result of working with old ovens in which asbestos is used as insulation.
Gert van der Laan, clinical specialist at the Netherlands centre for industrial sickness AMC, tells Tuesday's Zembla that the figure shows working with old ovens is dangerous. 'The bakers who contacted the IAS since 2000 have been working with asbestos for decades,' he tells the programme.

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Monday, January 13, 2014

U.S. workers’ comp industry revenues could decline

In a new report, Standard & Poor’s Ratings Services predicts revenues for the U.S. workers’ compensation insurance industry could decline amid economic weakness and an unsettled labor market.
“We remain pessimistic about the near-term profitability prospects for the U.S. workers’ compensation market despite improved pricing in the past couple of years,” said S&P credit analyst Siddhartha Ghosh. “We base our cautious view of the industry on such factors as continuing high unemployment levels and economic uncertainty, potential adverse reserve development, higher health care costs, and emerging risks like the expiration of Terrorism Risk Insurance Program Reauthorization Act in 2014 and significant uncertainty regarding the ACA.”
In its recent report, S&P explains that demand for workers’ compensation in the U.S. depends greatly on economic cycles with a strong correlation between premium growth for workers’ compensation insurance and the state of the labor market.
S&P cited unemployment and the GDP as affecting premium growth, noting that consumers remain worried, wages are virtually stagnant, unemployment remains high and the cost of living is rising.
Concerns about the on-and-off political gridlock in Washington, D.C., uncertainty about the implementation of the Affordable Care Act (ACA), and the potential for higher interest rates remain foremost on the minds of many, according to S&P.
Reauthorization...

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British Revised guidance on managing and controlling asbestos

The Health and Safety Executive (HSE) has revised guidance to help businesses understand how to work safely with asbestos.
The Approved Codes of Practice (ACOPs) L127 (The management of asbestos in non-domestic premises) and L143 (Work with materials containing asbestos) have been consolidated into one single revised ACOP – L143 Managing and working with asbestos.
L143 has been revised to make it easier for businesses and employers to understand and meet their legal obligations. It also reflects the changes introduced in The Control of Asbestos Regulations 2012 (CAR 2012) on the notification of non-licensed work with asbestos, and consequent arrangements for employee medical examinations and record keeping.
Highlighting the benefits of the change, Kären Clayton, Director of HSE’s Long Latency Health Risks Division, said: “The two ACOPs have been updated and brought together to help employers find the information they need quickly and easily and understand how to protect their workers from dangers of working with asbestos. The revised ACOP also provides better clarity on identifying dutyholders for non-domestic premises and the things they must do to comply with the ‘duty to manage’ asbestos.
ACOPs L127 and L143 were among several identified for: review and revision; consolidation; or withdrawal, following a recommendation made by Professor Ragnar Löfstedt in his report ‘Reclaiming Health and Safety for All’.
...

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Spoliation of Evidence: Sanctions Reversed in Employer Fraud Case

Where an employer was unable to retrieve unfamiliar accounting records because his computer was “totally broke down,” and he tossed it out, a NJ Appellate Court overruled the Trial Court’s imposed discovery sanctions.

The case involved a claim brought by both, Liberty Mutual Insurance Company [LM] and the State of New Jersey [NJ], against an employer, and their accountant. At the employer’s request his acceptant allegedly maintained two sets of payroll records.

One set was the “big payroll roll,” [between $2 and $3 million], and the other set was labeled the “small payroll [$5000,000.]” The employer was charged with fraudulently paying premiums for workers’ compensation based upon the small payroll.

An audit by LM of the employer’s payroll records, initiated after an anonymous telephone call, revealed the discrepancy that eventually resulted in charges being brought by the NJ State Office of Insurance Fraud Prosecutor.

During the discovery phase of the case, the employer was unable to timely produce QuickBooks accounting records from his computer. The resulting discovery sanctions were imposed. They resulted in a cascading series of legal determinations resting in a judgment against the employer.

The Appellate Court held that the discovery sanction were too harsh. It reversed and remand the case for further proceedings.

Liberty Mutual Insurance Company v. Viking Industrial Security, Inc., 2014 WL 51615 (N.J. Super. A.D.) Decided January 9, 2014

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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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Thursday, January 16, 2014

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