Will Workers' Compensation Adapt to "On Demand" Employment

Larry Page and Sergey Brin, founders of Google Inc. (Photo credit: Wikipedia)

The changing nature of employment status may have a profound effect on how workers' compensation exists, if at all, in the coming years. Today's post is shared from recode.net What happens as machines and artificial intelligence push humans out of the workforce? It’s one of the more important problems of our time — theoretical as it may seem in some sectors today — as technology makes industry after industry more efficient. One of the most important tech overlords, Google CEO Larry Page, thinks most people want to work, but they’d be happy working less. Page’s take: We have enough resources to provide for humanity. “The idea that everyone needs to work frantically to meet people’s needs is just not true,” Page said, in an interview at a private event put on by the venture capital firm Khosla Ventures that was just released online. In fact, today humanity does dumb things like destroy the environment, in part because people work when they don’t have to, Page contended. The answer isn’t to just cut jobs en masse, Page said. People want to feel “needed, wanted and have something productive to do.” But most everyone would like a little more time off. So perhaps one solution would be to split up part-time work between people, as Page said Richard Branson is experimenting with in the UK. Page’s co-founder Sergey Brin had a slightly different take. “I do think that a lot of the things that people do have been, over the past century, replaced by machines and will continue to be,” Brin said. But after Page opined about his idea of “slightly less...

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The Case for a Federal Response to Compensate Workers

Several recent studies highlight the inability of workers’ compensation based programs on a state level to provide a consistent and coherent response to a viral national pandemic such as COVID-19.

An Unpaid Volunteer Firefighter Is Entitled to NJ Workers’ Compensation Temporary Benefits

The NJ Supreme Court unanimously held that an unpaid and unemployed volunteered firefighter was entitled to temporary workers’ compensation benefits. The Court, in reversing both the Trial and Appellate rulings, declared that volunteer firefighters have been conferred special status by the New Jersey legislature and they should be paid temporary disability benefits at the maximum rate without a seven-day waiting period, even if the injured volunteer firefighter was not holding outside employment at the time of the work-related injury.

Emerging Concepts for Future Workers' Compensation Benefits: Portability Now

Workers' Compensation as a benefit program is beginning to evolve under the concept of "The Shared Economy." Attacked from within and without, challenged by abuse and fraud, drained by the cottage industries and vendors, national lawmakers, labor leaders, insurance companies, governmental agencies, and the media, are speaking out to change the century old system that fails to integrate with current social, political, economic and medical programs.

A recent letter from national labor leaders has called for a "portable" system of benefits that will replace the current patch-work of systems called "workers' compensation programs.":

"We need a portable vehicle for worker protections and benefits.Traditionally, benefits and protections such as workers compensation, unemployment insurance, paid time off, retirement savings, and training/development have been, largely or partly, components of a worker’s employment relationship with an employer. The Affordable Care Act has disrupted that model, providing more independent workers a different avenue of access to health insurance. Another new model is needed to support new ways of work. We believe this model should be:

● Independent: Any worker should be able to access a certain basic set of protections as an individual regardless of where they source income opportunities.

● Flexible and pro-rated: People are pulling together income from a variety of sources, so any vehicle should support contributions that can be pro-rated by units of money earned, jobs done, or time worked, covering new ways of micro-working across different employers or platforms.

● Portable: A person should be able to take benefits and protections with them in and out of various work scenarios.

● Universal: All workers should have access to a basic set of benefits regardless of employment status.

● Supportive of innovation: Businesses should be empowered to explore and pilot safety net options regardless of the worker classification they utilize.

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The Difficult Task of the Florida Supreme Court

The Florida Supreme has before it a constitutional challenge once again concerning workers’ compensation. The scope of the controversy remains undefined and the ultimate impact equally uncertain. I have found over the years that one cannot predict the outcome of a case by merely watching an oral argument.

Trump's Gig Economy

Today's guest author is Jon Rehm, Esq. of the Nebraska bar.

The United States Department of Labor (DOL) published an opinion letter that would seem to exempt most so-called “gig economy” companies from federal wage and hour enforcement.

NJ Successfully Targets Employee Misclassification

In response to a report issued by Governor Murphy’s Task Force on Employee Misclassification, the New Jersey Department of the Treasury has made significant strides to deter misclassification by organizations that do business with the State in order to help address the underlying causes that lead to ever-widening income inequality.

US Labor Department announces final rules to improve employment of veterans and people with disabilities

Hiring workers with pre-existing disabilities creates workers' compensation future costs of workers' compensation fears for many employers. As Second Injury Funds have evaporated as an economic insulator for employers, other mechanisms have been generated such as ADA claims and Federal employment regulations.

The U.S. Department of Labor today announced two final rules to improve hiring and employment of veterans and for people with disabilities. One rule updates requirements under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974; the other updates those under Section 503 of the Rehabilitation Act of 1973. For more than 40 years these laws have required federal contractors and subcontractors to affirmatively recruit, hire, train and promote qualified veterans and people with disabilities respectively.

"In a competitive job market, employers need access to the best possible employees," said Secretary of Labor Thomas E. Perez. "These rules make it easier for employers to tap into a large, diverse pool of qualified candidates."

"Strengthening these regulations is an important step toward reducing barriers to real opportunities for veterans and individuals with disabilities," said Patricia A. Shiu, director of the department’s Office of Federal Contract Compliance Programs, which enforces both laws.

The VEVRAA rule provides contractors with a quantifiable metric to measure their success in recruiting and employing veterans by requiring contractors to annually adopt a benchmark either based on the national percentage of veterans in the workforce (currently 8 percent), or their own benchmark based on the best available data. The rule strengthens accountability and record-keeping requirements, enabling contractors to assess the effectiveness of their recruitment efforts. It also clarifies job listing and subcontract requirements to facilitate compliance.

The Section 503 rule introduces a hiring goal for federal contractors and subcontractors that 7 percent of each job group in their workforce be qualified individuals with disabilities. The rule also details specific actions contractors must take in the areas of recruitment, training, record keeping and policy dissemination — similar to those that have long been required to promote workplace equality for women and minorities.

The rules will become effective 180 days after their publication in the Federal Register. More information is available atwww.dol.gov/ofccp/VEVRAARule/ and www.dol.gov/ofccp/503Rule/.

OFCCP enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. These three laws require those who do business with the federal government, both contractors and subcontractors, to follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. For general information, call OFCCP's toll-free helpline at 800-397-6251 or visit http://www.dol.gov/ofccp/.
Read this news release en Español.

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Equifax Battles Unemployed Workers

Today's guest author is Jon Rehm, Esq. of the Nebraska bar.

According to USA Today, thanks to a data breach that effected 143 million Americans, credit reporting company Equifax is the most hated corporation in America. 

But if you think the data breach was bad, just wait until you hear what Equifax does with unemployment claims. 

In 2012 Equifax acquired TALX (pronounced “talks”) which helps employers process unemployment claims. In 2010, the New York Times did some good reporting about how TALX helped delay and even deny unemployment benefits to unemployed workers during the height of the Great Recession with questionable appeals and other tactics. At that time, TALX processed unemployment claims for employers comprising up to 30 percent of the workforce. 

But even as memories of the Great Recession fade from media consciousness, TALX is still up its old tricks as a division of Equifax. The silver lining to the Equifax/TALX dark cloud for newly unemployed is if an employee appeals a denial of unemployment and Equifax/TALX is handling the claim, there is a good chance that Equifax/TALX will not appear for the unemployment appeal hearing. 

The mere fact Equifax/TALX no shows a hearing doesn’t automatically mean an employee wins their unemployment appeal in Nebraska. According to 224 NAC 01 014, an employee appealing a determination still must present evidence as to why the determination was incorrect. This is true whether the employee was alleged to have quit or was fired. The quit/fired distinction is important as the employee has the burden to prove they quit for good cause while the employer has the burden of proof to show the they fired the employee for misconduct in connection with employment. 

In my experience with uncontested unemployment appeals, the quit/fired distinction is less important than it is in a contested hearing. The problem for many employees though is that they don’t appeal their determination within the 20 day period allowed under Nebraska law. Additionally some employees could avoid an initial denial of benefits if they would better communicate with the Nebraska Department of Labor about their unemployment claim. 

Sometimes newly unemployed workers do things to undermine their right to receive unemployment, but I refuse to scapegoat ordinary people when a corporation like Equifax is actively working against unemployed workers pursing unemployment insurance. 

See also:
Taxi cab driver awarded workers compensation benefits

Employment Status: Common Law Tests May Need an Update

The Internet Redefines Jurisdiction

Is Social Insurance in Our Nation's Future?

NJDOL Alerts CPA;s About Employee Misclassification

Aging Baby Boomers Continue to Postpone Retirement, Report Finds

Working into retirement age is changing the way workers' compensation programs must handle claims. Developing new techniques to handle aging worker claims requires new economic and social considerations. Today's post is shared from alfa.org. A new survey reveals the financial impact the Great Recession has had on the Baby Boomer generation. 47 percent of working adults surveyed said they now expect to retire later than they previously thought, with an average retirement age of 66.  This figure was nearly three years later than the respondents’ reported estimate when they were 40. Working in "Retirement" The poll, conducted by the Associated Press-NORC Center for Public Affairs Research, surveyed 1,024 people aged 50 and older nationwide. Those surveyed were asked questions about their employment status, financial situation, and plans for retirement. Overall, men were more likely than women to postpone their retirement plans.  Minorities, parents of dependent children, those without health insurance, and those with an annual income of less than $50,000 were also more likely to delay their plans. Among those surveyed who had already retired, 4 percent said they were looking for a job and 11 percent are already working again. Among employed respondents, 82 percent said they were likely to seek at least part-time employment for extra income during retirement. Retirement Savings and Ageism  When asked specifically about retirement savings, about an equal share of those surveyed felt secure about the amount of savings they have for retirement (46 percent) as feel anxious (45 percent).  However, the researchers found that a significant portion of respondents gave signs of...

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Is ChatGPT Ready to Write Workers’ Compensation Decisions?

Artificial intelligence (AI) programs have become an exciting new Internet phenomenon. Initially launched to generate graphics, the programs have rapidly emerged as Internet research's most significant development of the last twenty years.

Victims of Misclassification

Misclassification is a major issue for workers' compensation programs. Misclassified workers are those who should be considered employes but have been denied employment status. This post is shared by from the nytimes.com

.LAST month, a Michigan construction worker named Matt Anderson testified in a Senate hearing about being a victim of employee misclassification. Mr. Anderson said that his employer forced him, after six years as an employee, to switch to “independent contractor” status. Though the move stripped Mr. Anderson of basic employee rights and protections, he went along with the change, he said, because “my fellow workers and I had families to support and we saw how bad the economy was.”

Today, millions of American workers in a wide variety of sectors, from construction and trucking to I.T. and professional services, are victims of misclassification, a tactic employers use to avoid paying taxes and providing benefits that are guaranteed to employees, such as workers’ compensation, overtime pay, minimum wage and unemployment insurance.

In 2000, a United States Department of Labor study estimated that up to 30 percent of employers misclassify workers. This year, the Treasury Department’s inspector general concluded that the problem had worsened. Fifteen states have now teamed up with the Department of Labor and the Internal Revenue Service to reduce misclassification through information sharing and joint...


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Forklift Operator Not A “Special Employee”

 Special equipment operators often appear to work for two employers simultaneously. The facade of dual employment may not meet the criteria for being a shared employee or “special employee.”

Victimizing Undocumented Injured Workers

NY TIMES QUOTATION OF THE DAY

"I was shot by terrorists, and it feels like the people I worked with are 

victimizing me all over again."

VALERIE KALLIS-WEBER, 59, a victim of a mass shooting in San Bernardino, Calif., last year, on medical treatments that have been denied or delayed under the workers' compensation system that covers her care.

Click here to read the entire article, "‘Victimizing Me All Over Again’: San Bernardino Victims Fight for Treatment" NY Times 11.30.2016

In New Jersey, "...without benefit of a legislative directive to the contrary, undocumented aliens are entitled to workers' compensation benefits. While undocumented aliens are not performing any illegal work, the court has reasoned that the New Jersey Workers' Compensation Act is not subject to any prohibitions similar to the unemployment law of each state which must comply with Federal standards; granting unemployment benefits to undocumented aliens would violate these standards."
Montoya v. Gateway Ins. Co., 168 N.J.Super. 100, 401 A.2d 1102 (App.Div.1979), certif. den. 81 N.J. 402, 408 A.2d 796 (1979). "The need for medical treatment is not a benefit derived from immigration status but rather from employment status. Mendoza v. Monmouth Recycling Corporation, 288 N.J.Super. 240, 672 A.2d 221 (App.Div.1996)." Gelman, Jon L., 38 N.J. Prac., Workers' Compensation Law § 11.8 (3d ed.).

…

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). 

For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Who Is An Independent Contractor: Deciding In a Multi-District Litigation Consolidation

The 7th Circuit Court of Appeals ruled that the Transferee Court designated by the Judicial Pannel on Mutli-District Litigation (JPMDL) has the discretion to make a decision on "independent contractor" status. The Circuit Court of Appeals denied a mandamus action and affirmed the decision of the JPMDL. 

"This petition for the extraordinary writ of mandamus presents an important question concerning the management of appeals in multidistrict litigation under 28 U.S.C. § 1407 when portions of some cases must be returned to their original transferor courts. In this case, the Judicial Panel on Multidistrict Litigation (JPML) chose one of two alternative courses. The JPML chose to ensure that each case produces one appeal of all issues in that case, rather than using partial final judgments under Federal Rule of Civil Procedure 54(b) to ensure that all related appeals would go to the same circuit. As we explain below, we agree with the JPML that there are strong arguments for both sides of this procedural dispute, and we defer to the JPML's exercise of its discretion in this matter. In terms of the standards for issuing writs of mandamus, we find that the petitioner has failed to show that it has a clear and indisputable right to issuance of the writ, so its petition is denied."

"Delivery drivers for petitioner FedEx Ground Package System, Inc. filed numerous class actions against FedEx alleging that the company improperly classified them as independent contractors rather than employees. Although the cases in federal courts alleged violations of many different state laws, they presented many common questions of fact. Under the authority of 28 U.S.C. § 1407, the JPML consolidated more than 70 of the cases in MDL No. 1700 and transferred those cases to the Northern District of Indiana in 2005 for consolidated pretrial proceedings under the supervision of Judge Robert L. Miller, Jr., a veteran district judge with long experience both as a transferee judge managing MDL cases and as a member of the JPML itself. Judge Miller supervised the cases through several years of discovery and motions practice.

FEDEX GROUND PACKAGE SYSTEM, INC.,  v.  UNITED STATES JUDICIAL PANEL 

ON MULTIDISTRICT LITIGATION, 

No. 11-243 Decided November 17, 2011 (&th Cir CT Appeals), 

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The Workplace is Getting Safer - The Future of Workers' Compensation

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Household Contact COVID Case Status in California Supreme Court

The defense brief has now been submitted to California Supreme Court for review on the question of whether the workers’ compensation act does bars a claim against an employer by a household contact of an employee who contacted COVID at work. The court granted the request, made under California Rules of Court, Rule 8.548, that the court will decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. 

When is an off-regular-hours activity not in the course of the employment?

The NJ Supreme Court is deliberating on the issue of whether an an employee should receive workers’ compensation if an injured occurred at an off-regular-hours event. The issue presented to the Court was whether an employee is entitled to benefits under the Workers’ Compensation Act, specifically N.J.S.A. 34:15-7, for injuries that occurred while she was volunteering at her employer’s “Family Fun Day” event?