Wednesday, May 28, 2014

The Slow, Quiet Death of Extended Unemployment Benefits

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

The Senate stumbled on a rare moment of bipartisan accord last month, when six Republicans joined Senate Democrats in passing an extension of unemployment insurance. Extended benefits for the long-term unemployed—measures enacted when the economy cratered at the start of the Great Recession—had expired at the start of the year, reverting back to the standard 26-weeks of assistance in most states. At that time, there were 1.3 million would-be-workers left in the cold. Each week since then, on average, benefits have lapsed for another 70,000 people, ballooning to just shy of three million people whose unemployment insurance has run out.
Under a deal crafted by Sens. Dean Heller (R-Nev.) and Jack Reed (D-R.I.), the Senate's bill offered retroactive payments to that cohort, and extended those benefits through the end of May, with the idea of revisiting the topic for another renewal at that point. It was a rare, triumphant moment for this do-nothing Congress.
And then nothing. Since early April, any effort to help the unemployed has been bottlenecked by House Republicans. House Speaker John Boehner (R-Ohio) immediately put the kibosh on the Heller-Reed plan, rejecting the Senate's bill within days of its passage and calling on the White House to put forth a new separate plan. He demanded that any extension of the insurance program be paired with new job training programs, but he failed to offer ideas of his own, a sign that his stipulations were just a means to...

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Tuesday, May 27, 2014

US 6th Circuit Holds Loss Of Employee Benefits Not Actionable Under RICO

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

JAY BROWN, Plaintiff-Appellant,
v.
AJAX PAVING INDUSTRIES, INC.; AMERICAN CONTRACTORS INSURANCE GROUP, INC.; WARD NORTH AMERICA, LP; VERICLAIM, INC.; NOVAPRO RISK SOLUTIONS, LP; NOVAPRO US RISK, LLC; PAUL DROUILLARD, Defendants-Appellees.

No. 11-1391

Appeal from the United States District Court for the Eastern District of Michigan at Detroit
No. 2:10-cv-10137—Gerald E. Rosen, Chief District Judge. Decided and Filed: May 19, 2014
BEFORE: SUTTON and COOK, Circuit Judges; MARBLEY, District Judge.*_________________
COUNSEL

ON BRIEF: Marshall Lasser, MARSHALL LASSER, P.C., Southfield, Michigan, for
Appellant. James J. Urban, Paul M. Mersino, BUTZEL LONG, Lansing, Michigan for Appellee
Ajax Paving. Joseph A. Fink, Jeffery V. Stuckey, D. Lee Khachaturian, DICKINSON WRIGHT
PLLC, Lansing, Michigan, for Appellees American Contractors, Ward North, VeriClaim and
NovaPro. Daniel B. Tukel, BUTZEL LONG, Detroit, Michigan, Michael F. Smith, THE
SMITH APPELLATE LAW FIRM, Washington, D.C., for Appellee Drouillard.
*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting
by designation.
_______________

OPINION
_________________
SUTTON, Circuit Judge. This case began as a dispute over who should pay for Jay
Brown’s shoulder injury. Brown claimed that he suffered the injury while paving a road for his
employer Ajax Paving, and that the company as a result owed him workers’ compensation. At
the workers’ compensation hearing, however, Ajax introduced medical testimony suggesting that
the injury occurred outside of work. While the case remained pending before the Michigan
administrative agency, Brown and Ajax settled.

Unlike most settlements, this one did not end the controversy. Brown thought that Ajax
had introduced false medical testimony in order to deny or at least diminish his benefits and that
it had done the same thing to other employees. As a result, he sued Ajax and its alleged
accomplices—insurers, claims administrators and the doctor—under the Racketeer Influenced
and Corrupt Organizations Act. The district court dismissed the complaint.

In order to sue under the Act, Brown must show that illegal racketeering activities have
“injured [him] in his business or property.” 18 U.S.C. § 1964(c); see also id. § 1962. Brown
attempts to meet this requirement by arguing that his employer’s use of false testimony prompted
him to accept a small settlement, and so cost him some of the workers’ compensation benefits he
otherwise deserved. Not long ago this theory of injury might have worked. This circuit used to
treat “expected [workers’ compensation] benefits” as “property” under the Act. Brown v.
Cassens Transp. Co., 675 F.3d 946, 951 (6th Cir. 2012).

But last year, while the appeal in this case lay pending, the court reversed course while
sitting en banc. In Jackson v. Sedgwick Claims Management Services, a carbon copy of this
case, we turned back a lawsuit challenging a scheme to introduce false testimony at workers’
compensation hearings. 731 F.3d 556, 558 (6th Cir. 2013) (en banc). We held that “loss or
diminution of benefits the plaintiff expects to receive under a workers’ compensation scheme
does not constitute an injury to ‘business or property’ under RICO.” Id. at 566. We gave two
key reasons for our holding. One was that workers’ compensation compensates for personal
injury. The Act, which puts its spotlight on “business or property,” does not cover losses that
flow from personal injuries. Id. at 565–66. The other was that a contrary rule would allow the
Act to police fraud in the workers’ compensation system, planting the national banner on land
traditionally patrolled by the States. The Act does not speak with enough clarity, we reasoned, to
authorize such an intrusion. Id. at 566–69.

Unfortunately for Brown, Jackson resolves this appeal. Brown’s alleged injury consists
of getting less workers’ compensation than he deserved. Because “loss or diminution” of
expected workers’ compensation “does not constitute an injury to ‘business or property,’” id. at
566, Brown’s claims must fail.

In response to all of this, Brown makes a partial but not a complete retreat. He submits
that Jackson applies only to disputes between employer and employee, leaving in place his
claims against the insurers, the claims administrators and the doctor. Yet this argument
overlooks what happened in Jackson itself. The defendants in that case included not only an
employer, but also a claims administrator and a doctor (in fact the same doctor sued in this case).
The court rejected the claims against all of the defendants. See id. at 558–59. To limit Jackson
to lawsuits against employers is to rewrite history.

This argument not only slights Jackson’s outcome, but it also disrespects its reasoning.
Jackson explained that expected workers’ compensation benefits stand outside the Act’s
perimeter because they flow from personal injuries. It added that extending the Act to expected
workers’ compensation benefits would clash with the States’ customary control of their workers’
compensation systems. Each argument applies with equal force whether an employee sues his
employer or somebody else. Changing the defendant neither weakens the link between the
benefits and personal injury nor dims the respect owed to the States’ authority over workers’
compensation.

Last but not least, Brown’s attempted distinction between employers and others collides
with the statute Congress enacted. The Act’s applicability turns on the nature of the injury—that
the plaintiff was “injured in his business or property.” 18 U.S.C. § 1964(c). It does not turn on
the nature of the defendant. We do not see how the same harm, loss of expected workers’
compensation benefits, could count as an injury to business or property against some defendants
but not against other defendants.

Brown complains that our decision “immunize[s] any insurer, claim adjuster or medical
examiner who fraudulently denied or conspired to deny” workers their benefits. Reply Br. at 5.
That is an overstatement. States can and do impose liability upon people—employers as well as
others—who defraud the workers’ compensation system. Brown’s own brief tells us that
Michigan’s courts would entertain claims that “an insurer, claim adjuster or medical examiner
tortiously interfered with an employee’s receipt of . . . benefits.” Id. at 3. And the commission
that heads the Michigan workers’ compensation system punishes abuses of the workers’
compensation process. See Mich. Comp. Laws Ann. § 418.861b. Our decision does not
“immunize” anyone from these exercises of state power. Our decision means only that federal
judges may not use the Act to seize this power for themselves. That of course was the whole
point of Jackson.

The defendants’ alleged actions in short did not injure Brown “in his business or
property.” 18 U.S.C. § 1964(c). Because this flaw undoes all of Brown’s claims, we need not
decide whether Brown’s settlement with Ajax covers this case. Nor need we consider whether
Brown has satisfied other requirements imposed by the Act.
For these reasons, we affirm.

Monday, May 26, 2014

Professional Footbal Players Facing a New Dilemma. Louisiana workers’ comp bill heads to the full Senate

Today's post is shared from http://profootballtalk.nbcsports.com
A controversial workers’ compensation bill proposed by the Saints continues to work its way through the Louisiana legislature.
Already passed by the House of Representatives, the bill passed the Senate labor committee Thursday on a vote of 4-3. It now will progress to the full Senate for a vote.
The dispute centers on the formula for calculating workers’ compensation benefits for players injured during offseason or training camp practices, when they’re not earning their full salary. The Saints’ bill would focus on the earnings at the time of the injury; the players want the benefits to be based on a 52-week average.
The battle, as Saints outside lawyer Chris Kane recently explained it to PFT, first arose 14 years ago in the court system. The Saints’ position regarding out-of-season injuries primarily had prevailed via litigation, and the bill was introduced this year after several attempts by a employee lawyer to pass a bill that would codify the players’ preferred formula.
“[I]t’s the CBA all over again, in regards to just [the fact that] there’s issues that are always management and NFL versus the Players Association and players,” Saints quarterback Drew Brees recently said, via Mike Triplett of ESPN.com. “I can tell you one thing, one thing that’s non-negotiable is workers compensation and player health...

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Jeb Bush Gives Party Something to Think About

The theme of an anti-worker candidate is shared in this article. Today's post was shared by Steven Greenhouse and comes from www.nytimes.com

As governor of Florida, Jeb Bush flew in Ivy League social scientists for daylong seminars with his staff and carved out time for immersive brainstorming sessions he called “think weeks.”
A voracious reader, he maintains a queue of 25 volumes on his Kindle (George Gilder’s “Knowledge and Power” among them, he said) and routinely sends fan mail to his favorite authors.
A self-described nerd, he is known to travel with policy journals and send all-hours inquiries to think tanks. (A sample Bush question: What are the top five ways to achieve 4 percent economic growth?)
As Mr. Bush, 61, weighs whether to seek the Republican presidential nomination in 2016, he is dogged by fears of voter exhaustion with a family name indelibly linked to his older brother, a self-assured Texan who prized instinct over expertise and once acknowledged a lack of interest in slogging through long books.
But in ways big and small, deliberate or subconscious, the younger Mr. Bush seems to have defined himself as the anti-George W. Bush: an intellectual in search of new ideas, a serial consulter of outsiders who relishes animated debate and a probing manager who eagerly burrows into the bureaucratic details.
Allies said that reputation — as what the Republican strategist Karl Rove called the “deepest thinker on our side” — could prove vital in selling Mr. Bush as a presidential candidate to an electorate still scarred by George W. Bush’s legacy...

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McDonald’s Indigestible Excuse for Low Pay

Today's post was shared by Steven Greenhouse and comes from takingnote.blogs.nytimes.com

When Henry Ford realized it was good business to pay employees enough to buy the products they built, it was a breakthrough, not only because the idea challenged the reflex to pay as little as possible, but because the product was a car. He was talking real bucks.
In response to escalating protests by McDonald’s employees calling for higher wages and the right to form a union without retaliation, McDonald’s chief executive, Don Thompson, defended the company at the annual meeting on Thursday, saying that McDonald’s pays a competitive wage.
But what constitutes “competitive” in the fast-food industry is precisely the problem. Hourly pay averages about $9. The low pay is possible in party because employers rely on taxpayers to subsidize it through public assistance and on non-unionized workforces to swallow it. The competitive fast food wage, in short, is not enough to live on.
Mr. Thompson presumably knows that. But he is paid not to understand what the protestors are demanding because his own pay is based on profits that are derived in part by keeping worker pay low.
Of course, if the political economy were functioning as it is supposed to – with Congress imposing reasonable boundaries on businesses, markets and the economy – workers wouldn’t have to get their bosses to understand what it’s like to live on $9 an hour, because Congress would make sure that no one had to.
The McDonald’s workers are asking for $15 an...

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Thursday, May 22, 2014

Ship Breaking - Unsafe Working Conditions on the Beaches of Bangladesh

Today's post comes from guest author Kit Case, from Causey Law Firm.

Today's post was shared by Kit Case and comes from www.gCaptain.com.

Cargo Ships on Beaches…Really?

By Jacob Sterling On August 30, 2013

A perspective on ship recycling and how to end beaching
Like most other things, ships don’t last forever. After 25-30 years they are no longer commercially usable and therefore taken out of service to be dismantled. The materials are recycled to a lesser or greater extent – since a large cargo vessel may consist of 20-40,000 tons of steel, they clearly have a market value as steel scrap.
The vast majority of ships are taken to India, Pakistan or Bangladesh to be scrapped on the beach. There is something quite wrong with that. People in flip flops on beaches are OK. But people on beaches wearing flip flops and no safety gear while taking apart massive cargo ships with hand tools is simply wrong.
Unsurprisingly, ship breaking is one of the most dangerous industries. According to the EU Commission, it is six times more likely to die at work in the Indian shipbreaking industry than in the Indian mining industry, and according to a recent report from Sustainalyitics, 1,000 people died in the Bangladesh ship breaking industry over a 10 year period.
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Photo: Shipbreaking at Alang. Photo: IMO, via www.gCaptain.com

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Monday, May 19, 2014

California’s Independent Medical Review System Unreasonably Denies Injured Workers Benefits

A California Appellate review panel recently decided that insurance companies and employers had acted in bad faith in applying provisions of the statute concerning Independent Medical Reviews. An injured worker had been denied pain relief medication contrary to the law.

In article published by lexisnexis.com a leading California Workers’ Compensation attorney, past president of the California Applicants Attorneys Association, and author, Melissa C. Brown, Esq.,

discusses Adel Salem v Riverside County WCAB CA.

“Once again, the WCAB gets it,” says Melissa C. Brown, of Fraulob, Brown, Gowen & Snapp, PLC. “Medical treatment denials that ignore the injured worker’s medical condition as a whole are not issued in good faith.” But Brown believes what Adel Salem suffered in this case would not be remedied by the “watered down” penalty provisions of Labor Code Section 5814, and that “the penalty is no deterrent; it is too little, too late.” Brown explains that the UR denial that occurred in Salem happens hundreds of times a week. “They are SOP,” says Brown. “Insurance companies and self-insured employers would rather pay UR companies and Maximus than follow common sense policies which leave routine and ongoing medical treatment decisions to treating doctors, most of whom are in their own MPNs.” In her opinion, Salem showcases the wholesale erosion of basic benefits to injured workers. “Thousands of workers are seeing their long term and effective treatment regimens terminated with no right to judicial review on the merits,” according to Brown.