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Sunday, August 30, 2015

Joint Employment: Workers' Compensation's New Frontier In The New Shared Economy

Last week the US National Labor Relations Board (NLRB) issued a decision that may have far reaching impact on how "joint employment" is interpreted in workers' compensation cases. Under the doctrine of "joint employment" an employee may be considered an employee of two employers and the ultimate responsibility maybe passed to franchisor under both, The Right to Control or The Nature of the Work, tests.

Tuesday, February 24, 2015

Hector and Brock have run their course, U.S. Supreme Court Declines Review

Today's post is shared from authored by The Honorable David Langham, the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings. Contact him atdavid_langham@doah.state.fl.us. It is shared from his blog lojcc.blogspot.com/
In January, I published Hector is Gone in Florida, Is the U.S. Supreme Court Next? Essentially, the Florida Fourth District Court of Appeal concluded that Fla. Stat. §440.105(4)(b)9 makes it a crime to present false or misleading information in the process of obtaining a job.

Specifically, the provision states it shall be unlawful for any person " . . . [t]o knowingly present or cause to be presented any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment or filing or supporting a claim for workers’ compensation benefits."

Hector and Brock were each accused of doing so, providing information deemed to be inacurate. Though neither had workers' compensation injuries, they were charged under Chapter 440.

The Florida Supreme Court declined to review the decision of the Fourth District. There was then an effort to have the decision reviewed through the federal courts. However, the U.S. Supreme Court denied certiorari February 23, 2015. The appeals in both Brock and Hector have now run their course.

It...

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Sunday, February 8, 2015

Wal-Mart sued in Georgia over wrong prescription

Today's post is shared from Westlaw Journal Professional Liability.

A pharmacist at a Wal-Mart store in Georgia filled a man’s prescription for blood pressure medication incorrectly, causing him to develop kidney failure, according to a state court lawsuit.

Plaintiff Harold Williams, who also worked at Wal-Mart, says the company fired him while he was sick from the taking the wrong medication.

(

Williams says he went to a Wal-Mart pharmacy in Roswell, Ga., in January 2013 to get a prescription for 25 milligrams of hydralazine, a blood pressure medication.

The unidentified pharmacist who filled the prescription gave him 25-milligram tablets of hydrochlorothiazide, a diuretic used to treat fluid retention, the suit says.

(Click here to read the complaint on WestlawNext.)

Williams says that because of the error, he took doses of the wrong medication and later was diagnosed with acute renal failure and hospitalized.

He seeks to hold the pharmacist liable for negligence and malpractice. The suit also says Wal-Mart failed to properly hire, train, retain and supervise its pharmacist and other employees.

The complaint seeks compensatory damages from the defendants for past and future medical bills, past and future lost income, and past and future pain and suffering. It also requests punitive damages solely against Wal-Mart for allegedly firing Williams.

Williams v. Wal-Mart Stores Inc. et al., No. 15-EV-000040, complaint filed (Ga. State Ct.,...


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Monday, January 19, 2015

The 9 Most Important Victories for Workers in 2014

Today's post was shared by CAAA and comes from inthesetimes.com



These are tough times for American workers. But the news in 2014 wasn't all bad. (Steve Rhodes / Flickr)
The mainstream press often files workers’ stories between corporate gossip in the “business” or “money” sections. But the efforts of working people to organize for their common interests—as well as the efforts of the 1 percent to keep a lid on things—frequently made front-page news this year.
Much has been made of the incredibly hostile climate for labor over the past few decades. Yet this past year, workers still organized on shop floors, went out on strike, marched in the street and shuffled into courthouses to hold their employers accountable, and campaigned hard for those who earned (or, often enough, didn’t earn) their vote. Legislators, meanwhile, tarried on with their anti-worker “right-to-work” laws, and union busters busted up unions. But if state legislatures and the U.S. Supreme Court were harsh on workers, the National Labor Relations Board (NLRB) was refreshingly helpful, passing down several rulings that made organizing easier and wage-theft harder.
Whether it was fast-food and retail workers demanding respect and better pay in record numbers, cities across the country raising their minimum wage under public pressure, or student athletes gaining recognition as employees of their universities, the labor movement has seen some important—and, at times, unexpected—victories this past...
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Saturday, December 20, 2014

Workers Assail Night Lock-Ins By Wal-Mart

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

Looking back to that night, Michael Rodriguez still has trouble believing the situation he faced when he was stocking shelves on the overnight shift at the Sam's Club in Corpus Christi, Tex.

It was 3 a.m., Mr. Rodriguez recalled, some heavy machinery had just smashed into his ankle, and he had no idea how he would get to the hospital.

The Sam's Club, a Wal-Mart subsidiary, had locked its overnight workers in, as it always did, to keep robbers out and, as some managers say, to prevent employee theft. As usual, there was no manager with a key to let Mr. Rodriguez out. The fire exit, he said, was hardly an option -- management had drummed into the overnight workers that if they ever used that exit for anything but a fire, they would lose their jobs.

''My ankle was crushed,'' Mr. Rodriguez said, explaining he had been struck by an electronic cart driven by an employee moving stacks of merchandise. ''I was yelling and running around like a hurt dog that had been hit by a car. Another worker made some phone calls to reach a manager, and it took an hour for someone to get there and unlock the door.''

The reason for Mr. Rodriguez's delayed trip to the hospital was a little-known Wal-Mart policy: the lock-in. For more than 15 years, Wal-Mart Stores Inc., the world's largest retailer, has locked in overnight employees at some of its Wal-Mart and Sam's Club stores. It is a policy that many employees say has created disconcerting situations, such as when a worker in...
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Thursday, December 18, 2014

Wal-Mart must pay $188 million in workers' class action

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

(Reuters) - The Pennsylvania Supreme Court ordered Wal-Mart Stores Inc to pay $188 million to employees who had sued the retailer for failing to compensate them for rest breaks and all hours worked.
Wal-Mart said on Tuesday that it might appeal the decision, which upheld lower court rulings, to the U.S. Supreme Court.
Monday's ruling on the class-action lawsuit will reduce Wal-Mart's earnings for the quarter ending on Jan. 31 by 6 cents a share, the company said in a securities filing. That amounts to roughly 4 percent of its profit forecast of $1.46 to $1.56 for the period.
Wal-Mart shares were up 0.5 percent at $84.39 in midday New York Stock Exchange trading.
The Pennsylvania Supreme Court upheld a 2007 lower court ruling in favor of the workers, who said Wal-Mart failed to pay them for all hours worked and prevented them from taking full meal and rest breaks.
Wal-Mart spokeswoman Brooke Buchanan said the company did not believe the claims should be grouped together in a class-action suit. "Walmart has had strong policies in place to make sure all associates receive their appropriate pay and break periods," she said.
The decision, which affects about 187,000 Wal-Mart employees who worked in Pennsylvania between 1998 and 2006, marks the second unfavorable ruling in a week for the retailer, the largest private employer in the United States.
On Dec. 9, a National Labor Relations Board administrative law judge found Wal-Mart had threatened employees trying to organize...
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Read more about Walmart and workers' compensation
Nov 30, 2014
While millions of shoppers flocked to Walmart stores nationwide on Black Friday, thousands of protesters descended on Walmarts to protest what they said were the retailer's low wages. About 300 people rallied Friday ...
Nov 25, 2014
Wal-Mart workers and their supporters plan to launch protests at stores across the country on Black Friday to push for higher wages and better working conditions for employees.Organizers say rallies and marches will occur at ...
Nov 17, 2014
CHICAGO (Reuters) - A group of Walmart employees pushing for higher wages said on Friday they were planning protests at 1,600 Walmart stores nationwide on Black Friday, the biggest shopping day of the year in the ...
Oct 20, 2014
Labor activists have long denounced retailers like Walmart for employing an army of low-wage, part-time workers to staff their stores. As retail sales flounder in an uncertain economy, those activists — and even a growing ...

Monday, December 8, 2014

Labor's new reality -- it's easier to raise wages for 100,000 than to unionize 4,000

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


Union protest
Union protest

Haltingly, with understandable ambivalence, the American labor movement is morphing into something new. Its most prominent organizing campaigns of recent years — of fast-food workers, domestics, taxi drivers and Wal-Mart employees — have prompted states and cities to raise their minimum wage and create more worker-friendly regulations. But what these campaigns haven't done is create more than a small number of new dues-paying union members. Nor, for the foreseeable future, do unions anticipate that they will.

Supreme Court should affirm the rights of pregnant workers
Supreme Court should affirm the rights of pregnant workers

Blocked from unionizing workplaces by ferocious management opposition and laws that fail to keep union activists from being fired, unions have begun to focus on raising wages and benefits for many more workers than they can ever expect to claim as their own. In one sense, this is nothing new: Unions historically have supported minimum wage and occupational safety laws that benefited all workers, not just their members. But they also have recently begun investing major resources in organizing drives more likely to yield new laws than new members. Some of these campaigns seek to organize workers who, rightly or wrongly, aren't even designated as employees or lack a common employer, such as domestic workers and cab drivers.

Why these new manufacturing jobs won't save the American middle class
Why these new manufacturing jobs won't save the American middle class

The decision of Seattle's government to raise the city's minimum wage to $15 resulted from just such...
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Friday, November 28, 2014

Ohio bill seeks extra retail pay on Thanksgiving

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

COLUMBUS, Ohio (AP) — A lawmaker in Ohio wants stores in the state to pay triple wages for employees who work on Thanksgiving — an effort that comes as Macy's, the holiday's quintessential retailer, is allowing its workers to choose whether to work that day.
Both are attempts to counter frustration among workers and their families over holiday store hours that have expanded into the holiday.
State Rep. Mike Foley, a Democrat from Cleveland, said his bill would allow employees to bow out of the holiday shift without job sanctions while protecting family time from excessive consumerism.
It comes after a federal complaint filed earlier this year accused Wal-Mart of illegally firing, disciplining or threatening more than 60 employees in 14 states for participating in protests over wages and working conditions.
Worker organizations — especially the AFL-CIO labor coalition — have organized additional pickets around holiday staffing this year, alongside social media campaigns publicizing workers' personal accounts. They're pushing shopper boycotts on Black Friday — the day after Thanksgiving — and on the holiday itself, which is sometimes referred to as Gray Thursday.
Foley said the idea for his bill came from a call last year from a Cincinnati woman who said both she and her 82-year-old mother had been scheduled to work their retail jobs on Thanksgiving.
"I was offended by it," he said. "Can't there be one day that's carved out of...
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Wednesday, November 26, 2014

Stand With Workers on Black Friday

Today's post is shared from fbgslaw.com

Donald W. Fraulob


California Labor Federation is attempting to organize a protest against Walmart for its failure to pay its employees a living wage.  Here is the union alert:
Wouldn’t it be amazing if working families gathered together on Black Friday and sent a message to the country’s largest employer that its workers deserve a living wage and full-time work? Well, that’s exactly what’s going to happen, and you can be a part of it.
Walmart is the largest private employer in the world, and the Walton family, owners of the company, has more wealth than 43% of Americans combined. While the retailer rakes in $16 billion a year in profits, it pays poverty wages and many of its workers have to rely on public programs, like food stamps, to survive.
That’s why working families will be gathering at Walmart stores across the country on Black Friday to tell the Waltons to do the right thing.
We know Walmart pays attention to these protests, and you can help change not just the company’s policies, but the lives of workers. We have already seen recent successes, like when Walmart changed its policy on pregnant women after workers submitted a resolution to the company or when the retailer created a system that gives workers better access to hours by allowing them to sign up for open shifts online.
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Contributed by Donald W. Fraulob. Donald W. Fraulob is the firm’s managing attorney. He also maintains an active practice in Social Security Disability, Workers’ Compensation, and Wills and Trusts, including health care directives and special needs trusts. He is knowledgeable in union pension plans and benefits and was counsel in a major class action case which enhanced the disability and retirement pensions for members of our law enforcement community.

Mr. Fraulob has been recognized as highly competent and ethical by his peers and has been awarded special acknowledgment in Top Lawyers in Northern California for many years. He is certified by the State Bar of California Board of Legal Specialization as a certified specialist in Workers’ Compensation. Mr. Fraulob is a Workers’ Compensation Appeals Board arbitrator. His advice and counsel is sought out by many attorneys throughout the Sacramento area.

Mr. Fraulob is a graduate of McGeorge School of Law of the University of the Pacific. He is a member of the United States Supreme Court Bar, as well as federal district courts and all California Courts. He established the Student Law Center at California State University, Sacramento, and served as its first attorney/director. He is active in appellate litigation. Some of his appellate cases have resulted in extension of benefits in the Workers’ Compensation arena. He often speaks at legal conventions and seminars.


Tuesday, November 25, 2014

Wal-Mart workers plan Black Friday protests for higher pay

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


Wal-Mart protest
Wal-Mart protest

Wal-Mart workers and their supporters plan to launch protests at stores across the country on Black Friday to push for higher wages and better working conditions for employees.Organizers say rallies and marches will occur at 1,600 Wal-Mart locations on the day after Thanksgiving in what they say will be the largest protests ever against the nation's biggest retailer.

Backing the demonstrations is Our Wal-Mart, the union-supported group of employees that has been pushing for a living wage of $15 an hour and more full-time positions. A protest earlier this month at a Wal-Mart in Pico Rivera ended with the arrest of 23 people for unlawful assembly and failure to disperse.
Martha Sellers, a cashier at the Wal-Mart store in Paramount,  said her low salary forces her to rely on ramen noodles and sometimes peanut butter to survive.
"The truth is it's not easy to talk about hunger and being hungry," Sellers said during a media call on Friday. She said she wants $15 an hour so she can buy groceries that are healthy.
Wal-Mart spokeswoman Brooke Buchanan said many of the protesters participating in the Black Friday demonstrations are being paid to show up by unions.
"We have seen this story before about the protesters and unions threatening to protest in a large amount of stores," she said. "What it turns out to be is a handful of stores with a handful of associates."
Large...
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Monday, November 17, 2014

Walmart workers plan Black Friday protests over wages

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

CHICAGO (Reuters) - A group of Walmart employees pushing for higher wages said on Friday they were planning protests at 1,600 Walmart stores nationwide on Black Friday, the biggest shopping day of the year in the United States.
The labor group, Our Walmart, said it had protested 1,200 to 1,400 Walmart stores last year on Black Friday, the day after the Thanksgiving holiday.
Wal-Mart Stores Inc, owner of Walmart brand stores, and the largest private employer in the United States, has been a target for activists in the contentious national debate over proposals to raise the minimum wage.
The announcement comes a day after police arrested 23 people outside a Los Angeles-area Walmart protesting what they say are the company's low wages and its retaliation against employees who pushed for better working conditions.
The arrests on Thursday followed several hours of protest by a number of Walmart workers in California, according to Our Walmart and The United Food and Commercial Workers International Union, or UFCW.
About 30 workers entered a Walmart store in the Crenshaw neighborhood of Los Angeles on Thursday morning and held a sit-down protest for two hours, UFCW spokesman Marc Goumbri said.
The workers then protested at a Walmart store in Pico Rivera in eastern Los Angeles where the arrests eventually took place.
"Over the last year, Walmart workers have pressured Walmart to change its pregnancy policy, provide access to more hours and most recently to pledge to phase out its...
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Friday, October 31, 2014

Safety in Space: 2nd Catastrophic Accident The Week: 1 Dead, 1 Injured In Virgin Galactic Spacecraft Crash

Space flight has become a very high risk issue this week with the 2nd major event occurring within days. This new accident resulted in at least one fatality reports ABC News and comes days after a major explosion on the Antares Rocket on Wednesday at the Wallops Flight Center.

Read the latest ABC News report: Click here.

"One person died and another suffered a major injury after Virgin Galactic's SpaceShipTwo spacecraft crashed in California's Mojave Desert today."

Wednesday, October 29, 2014

H&M Bans India’s Super Spinning After Report of Child Labor

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

Hennes & Mauritz AB (HMB) will blacklist a spinning mill in southern India after a report claimed five manufacturers there use child labor and subjected workers, mostly women and girls, to “appalling” working conditions.

H&M will ban suppliers from using products made by Tamil Nadu-based Super Spinning Mills Ltd. (SSPM), the Stockholm-based company said today. A Bangladeshi supplier has used yarn produced at the mill, though H&M doesn’t have a direct business agreement, spokeswoman Lena Enocson Almroth said in an e-mail. Super was “unwilling to cooperate with H&M in a transparent way.”

The decision follows a report by the Centre for Research on Multinational Corporations, or SOMO, and the India Committee of the Netherlands which said workers face labor conditions “that amount to forced labor in the export-oriented southern Indian textile industry.” The report, which was compiled using a mixture of desk research and interviews on the ground with workers, covers five mills, including Super.

“This report is totally false,” Super Spinning Mills’ Managing Director A.S. Thirumoorthy said by phone from his office in Coimbatore in southern India. “Buyers from H&M and Decathlon regularly come and audit our facilities.”

The mill complies with all Indian...
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Antares Rocket, Bound for Space Station, Explodes



Last evening an unmanned Antares rocket blew up at launch at Wallops Space Flight Center. No injuries were reported. Actually the rocket failed a few seconds after launch and the The Range Safety Officer detonated the on board explosives to destruct the rocket before it deviated into a populated area. When I toured the launch site about 18 months ago I brought this question up to the Orbital officials which is the private company managing the rocket and the payload destined to to the International Space Station (ISS). Safety is a major concern for NASA and Orbital and last evening's events proved it. By the way, the rocket is an old Russian based vehicle with huge amount of  power. 

Today's post is shared from nytimes.com/
An unmanned cargo rocket carrying supplies to the International Space Station exploded seconds after liftoff Tuesday night.
The Antares rocket, carrying 5,055 pounds of supplies, science experiments and equipment, lifted off on schedule at 6:22 p.m. from NASA’s Wallops Flight Facility in eastern Virginia.
But soon after it rose into the sky, there was a flash of an explosion. “The ascent stopped,” Frank L. Culbertson Jr., the executive vice president of Orbital Sciences Corporation, the maker of the rocket, said during a news conference Tuesday. “There was some disassembly of the first stage, it looked like, and then it fell to earth.”
No one was injured.
Orbital, based in Dulles, Va., first launched a 14-story-high Antares rocket on its maiden flight in April last year. It then conducted a demonstration flight to the space station to show NASA the capabilities of the rocket and the cargo spacecraft. Then came two more flights carrying cargo to the space station, part of a program in which NASA has hired private companies to ferry cargo to the space station. Tuesday’s launch would have been the third of eight cargo missions under a $1.9 billion contract.
Orbital will lead an investigation. Mr. Culbertson said the company would not launch another Antares rocket until it had identified and corrected the problem.
Space Exploration Technologies Corp., of Hawthorne, Calif., known as SpaceX, has successfully flown four cargo missions to the space...
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Thursday, October 9, 2014

Trucking firms, short of drivers, are stretching to find more

Today's post was shared by Trucker Lawyers and comes from www.startribune.com

On Thursday afternoon, Tim Hoag stood in the arrivals area at Minneapolis-St. Paul International Airport looking for a truck driver.
The man he was waiting for, Bill McMahon, had previously driven trucks for Hoag’s company, Copeland Trucking of Fridley, and Hoag made a deal to lure him back.
Because McMahon now lives in California, Hoag agreed to let him drive out there once a month, even though Copeland avoids jobs in California because of the state’s burdensome regulations. But finding drivers is so difficult these days that Hoag was willing accommodate McMahon’s desire for regular visits home.
“It will be worth it just to have him available here in the Midwest for those three weeks of every month,” Hoag said. “That is what you have to do in today’s environment.”
McMahon is thrilled. “I think it’s awesome. They are going to take care of me and I am going to take care of them,” he said Thursday. “That’s what we agreed on. That’s why I’m here.”
Across the country, trucking companies, and manufacturers and retailers with their own fleets, are resorting to an array of incentives, including higher wages, to attract drivers.
Wal-Mart Stores Inc., the nation’s biggest retailer and operator of one of its biggest truck fleets, is using radio ads to appeal to qualified truck drivers with an offer of a $76,000 salary plus benefits to join the company. That’s far above the national...
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Tuesday, October 7, 2014

Wages should be growing faster, but they’re not. Here’s why.

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

When it comes to stagnant wage trends, I yield to no one (except maybe the Economic Policy Institute’s Larry Mishel) in my efforts to elevate the issue and tie it to deep-seeded structural changes that have been zapping worker bargaining power for decades. I’ve tried to be particularly vigilant in ringing this lack-of-real-wage-growth alarm bell in recent months, as the tightening job market has led to threatening chatter about the need for the Federal Reserve to ratchet up rates sooner than later.
So when I tell you I’m a little surprised to see almost no movement in wage growth despite the improving employment situation, I hope you’ll give me a listen. To be clear, that’s “a little surprised.” There’s still considerable slack in the job market, and, like I said, workers’ ability to bargain for a bigger slice of the pie has taken a real beating over the years.
But given the extent to which the job market has tightened up in recent months, I would expect a bit more wage pressure than I’ve seen (“tightening,” “improving,” “less slack” are all econo-mese for stronger labor demand leading to faster job growth and lower unemployment). So let’s look at the evidence for these claims and think about why the wage dog is not barking. While I offer a number of credible hypotheses, the one I favor is pretty straightforward: Raising pay is simply not part of the business model of...
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Who Are ‘We the People’?

Workers' Compensation dependency benefits were just modified by the US Supreme. In making the decision not to review its decision about same sex marriage, statutes conytaining the word "spouse" now have a new definition. Today's post was shared by Steven Greenhouse and comes from www.nytimes.com

Who is a person? How do you qualify for basic human rights? What is required for you to be able to speak or worship freely or to be free from torture?
Throughout American history, the Supreme Court has considered and reconsidered the criteria for membership in the club of rights, oscillating between a vision limiting rights to preferred groups and another granting rights to all who require protection. These competing visions have led to some strange results.
Corporations (as well as unions) can spend on political speech to further their group interests as though they were individual political actors. Corporations can assert religious rights to gain legal exemptions from laws that would otherwise apply to them. Muslim detainees at Guantánamo Bay, however, have none of these rights.
As a corporate litigator who has also spent more than a decade defending Guantánamo detainees, I have been trying to figure out why corporations are worthy of court protection and Muslims held in indefinite detention without trial by the United States at a naval base in Cuba are not.
The direction of the Supreme Court under Chief Justice John G. Roberts Jr. over the past decade has been anything but consistent. As the court readies itself for another term, it may not be possible to speak of a Roberts court jurisprudence at all. Even within the conservative and liberal blocs there are a range of views on the limits of executive power, the relationship between the federal government and...
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Tuesday, September 30, 2014

Why so many injury claims from L.A. public safety workers?

Los Angeles' police and firefighters take paid injury leave at significantly higher rates than public safety employees elsewhere in California. Why? Is it more strenuous or stressful to work in the city of Los Angeles, compared with L.A. County or Long Beach? Does the city have an older workforce more prone to injury? Or is it just so easy to game the system in L.A. that filing an injury claim has become a routine matter in the police and fire departments?
A Times investigation on Sunday revealed that 1 in 5 Los Angeles police officers and firefighters took paid injury leave at least once last year, and that not only are the number of leaves going up, but they are getting longer too. While on leave for a work-related injury, a police officer or firefighter earns 100% of his or her salary — but is exempt from federal or state taxes for a year. So it is actually more lucrative not to work than it is to work.

L.A. pays millions as police and firefighter injury claims rise
L.A. pays millions as police and firefighter injury claims rise

Meanwhile, the fire department has had to spend more money on overtime to ensure that fire stations are fully staffed, and the LAPD, which cut paid overtime, has had fewer cops on the streets. Taxpayers spent $328 million over the last five years on salary, medical care and related expenses for employees on injury leave. Oh, and the state Legislature has repeatedly expanded the kinds of work-related "injuries" covered by the policy. They include Lyme Disease and HIV and stress.
Certainly, paid...
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