The Oklahoma courts have been methodically dismantling parts of a sweeping overhaul to workers’ compensation made in 2013. Just a few weeks back, the Oklahoma Workers’ Compensation Commission ruled that a provision of the overhaul which allowed employers to write their own workers’ compensation plan violated Oklahoma’s State Constitution. Now, in the case of Maxwell v. Sprint PCS, the Oklahoma Supreme Court has ruled that another provision of the 2013 workers’ compensation changes tramples the Due Process Clause of both the Oklahoma State Constitution and the Constitution of the United States of America.
Permanent Partial Disability in Oklahoma: Damned if You Do; Damned if You Don’t
The section of law that the Oklahoma Supreme Court found to have so grievously violated the constitutional rights of employees was a provision allowing employers to defer payment of workers’ compensation in cases of permanent partial disability (PPD) where an employee returns to their pre-injury job. A PPD is where an employee permanently loses some, but not all, function in a body part due to a workplace injury.
Under the Oklahoma deferral rule, when an injured employee—having healed their injury as much as possible—returns to the position they held before their injury, or an equivalent job, their workers’ compensation payments were put on hold. While they worked at their old job, the amount owed to them for workers’ compensation decreased by 70% of their average weekly wage every week. Under Oklahoma’s 2013 workers’ compensation scheme, an injured worker receives 70% of their average weekly wage (with some limitations) over a statutorily determined number of weeks based on where they were injured. This means that every week an employee worked at their old job they essentially lost one week of workers’ compensation.
If the injured employee refused to return to work, their workers’ compensation was deferred in the same manner. So no matter what an employee did, once their employer offers them their job back, they stopped receiving workers’ compensation.
On its face, the rule already seems wrong. An employer could hire back a seriously injured employee, just to arbitrarily fire them once their workers’ compensation runs out. In fact, this is exactly what happened to one of the employees in the case that led the Oklahoma Supreme Court to rule the deferral scheme unconstitutional. If the employee doesn’t want to go back, they still don’t get their workers’ compensation. However, it wasn’t what the rule did that ultimately led the Oklahoma Supreme Court to rule it unconstitutional - it was how they did it.
Why is it Unconstitutional?
The Due Process Clause prevents the government from depriving a person of life, liberty, or property without due process of law. There are two types of due process, substantive and procedural. Substantive due process deals with the government regulation taking away a fundamental right. Procedural due process deals with the right to have the opportunity to make your case for yourself before the government takes away your life, liberty or property.
The Oklahoma Supreme Court ruled that the deferral provisions violated workers’ right to procedural due process. Workers have a property interest in an award of workers’ compensation. This means they receive due process protections before those workers’ compensation benefits can be taken away from them. As part of the protections of due process, Oklahoma due process requires that “all parties must be apprised of the charges so they may test, explain or rebut it. They must be given an opportunity to cross-examine witnesses and to present evidence."
This was an opportunity not given to workers seeking a hearing on their deferral. When a worker asked for a hearing upon returning to work, their employer was allowed to show any evidence they wanted at that hearing while the worker was only allowed to show medical evidence. The only evidence considered at these hearings was whether the worker had in fact returned to work.
The Court ruled that this meant that the hearings presumed that an injured worker has no loss of wage earning capacity because they have returned to work earning the wages they made before their injury. However, this presumption doesn’t take into account the loss of work life or future job opportunities from the injury. Thus, the hearings denied injured workers the chance to present “evidence of loss of wage-earning capacity [which] could include the injured employee's age, education, work history, vocational training, transferable skills, job opportunities, fitness to perform certain jobs, wage levels, or other information relating to his or her employment situation.” By not allowing employees to present all their evidence at these hearings, the procedures of the deferral provisions denied those employees due process.
The Future of Oklahoma Workers’ Compensation
The decision in Maxwell v. Sprint was a 7-2 decision on the part of the Oklahoma Supreme Court. Two separate judges included concurring opinions arguing that the opinion of the rest of the judges didn’t go far enough in just saying that the deferral provision “trampled” constitutional rights.
The 2013 changes to Oklahoma’s workers’ compensation system were employer-friendly to say the least—reducing potential awards for employees nearly across the board. Being employer-friendly is not by itself a bad thing, but with two separate provisions of the changes already found unconstitutional, it calls into question the changes as a whole. Time will tell whether Oklahoma will need to make further changes to its workers’ compensation law in order to protect workers in the state.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
The Supreme Court recently upheld a whopping $2.9M dollar judgment in a class action lawsuit against Tyson Foods brought by its current and former employees. Law nerds, such as myself, anticipated the potential that this case might create a rule narrowing the circumstances in which employees could bring a class action lawsuit against their employer. Instead, the Supreme Court strengthened existing rules on wage-an-hour law (how an employer has to pay their employees) and maintaining records. This means that it’s more important than ever that both employees and employers understand how this law works in order to either protect your rights or protect your neck from Tyson’s fate.
The Tyson Case
Tyson Food was originally sued by its employees for not paying them for the time it took to take on and off protective gear necessary for their positions. In 1998, Tyson had been ordered by a court to start paying for this time spent donning and doffing protective gear. While Tyson complied at first, they stopped paying for the time spent on protective gear in 2007—instead only paying select employees for time spent with gear. At the time of the suit, Tyson paid its workers on a “gang-time” system. Under this system, Tyson paid only for time employees were at their work stations and the production line was moving.
Tyson’s employees, unsatisfied with this development, formed a class action lawsuit to get the unpaid overtime resulting from Tyson’s failure to pay for time spent dealing with gear. The employees won in the first go round to the tune of $2.9M (less than half of the $6.7M they were asking for), then they won again on Tyson’s appeal to U.S. Eighth Circuit Court of Appeals. Tyson, having lost twice, went to the Supreme Court arguing that the employees shouldn’t have been allowed to sue as a class and that there was no way to figure out which employees should receive damages.
Lawsuits with Class
In order to understand Tyson’s first complaint, it’s important to first understand how class action lawsuits work. In simplest terms, class actions are lawsuits brought by a group of people who’ve suffered the same or similar injury. One of the common examples is, as here, employees suing their employer over a policy that affected all of them.
Employment lawsuits can form a collective action under the rules of the Fair Labor Standards Act (FLSA), a class action under Federal Rules of Civil Procedure 23, or both. The biggest difference between the two is how you become a member of the suit. A collective action requires each member of the suit to opt into the suit. A Rule 23 class action includes all unnamed members who fall within the class definition unless they opt out. In Tyson case, the employees collective action had 444 members while the Rule 23 class action lawsuit had 3,344.
Tyson argued to the Supreme Court that neither the collective action nor the class action were properly certified (told that they were proper class action suits) because the employees didn’t spend the same amount of time dealing with protective gear. They said that this means that the employees didn’t have a common complaint.
Tyson had good reason to think that the Supreme Court would back them up on this argument. Just a few years back the Supreme Court ruled in favor of Walmart in a class action employment discrimination case—saying the 1.5M class members didn’t have similar enough situations to be certified as a class.
However, much to Tyson’s chagrin, the Supreme Court didn’t think this case was similar to the Walmart case. Tyson’s fatal flaw? They never kept any records of the time their employees spent changing into and out of their gear.
The FLSA and Proper Records in Wage an Hour Cases
The Supreme Court rejected Tyson’s argument based on the rules of the FLSA. The FLSA is a body of federal law which sets rules for, among other things, minimum wage, overtime pay, and recordkeeping requirements.
The FLSA requires employers to pay for activities integral and indispensable to regular work, even if these activities don’t occur at the employee’s workstation. It also requires employers to keep accurate records of the hours their employees work as well as wages earned. These recordkeeping requirements can become more involved from state to state, and even the FLSA has some more specific requirements.
Where an employer fails to keep proper records, employees can rely on representative evidence to establish the hours they’ve worked. This evidence only needs to be sufficient for a reasonable inference that the employees’ evidence is an appropriate approximation of the hours they worked. For this reason, it is incredibly important for an employer to keep legally compliant records.
Tyson kept no records whatsoever of the time their employees spent changing in and out of protective gear. For this reason, Tyson’s employees were able to rely on the evidence of an expert to determine the average time it took to deal with the protective gear and calculate unpaid overtime based on this average. The Supreme Court found that Tyson’s employees, working at the same facility and affected by the same policy, were similarly situated in that they could all have introduced the same expert study to establish the hours they weren’t paid for. This is as opposed to the Walmart case, where each instance of alleged discrimination arose from a different set of facts and had a different effect.
Implications of the Supreme Court’s Decision
Tyson’s second argument, that the class included members who had no right damages, led the Supreme Court to send the case back down to the district court to figure out how to allocate the $2.9M.
However, the Supreme Court’s first ruling still means that where an employer doesn’t keep records, they are opening themselves up to even more liability than they could have expected. For employees, this makes a cheaper means of litigating their rights more available. For employers, it means that improper records may be open the door to an easily certified class action lawsuit against them—just like Tyson. It’s worth it for employers to seek out an employment lawyer to ensure their records don’t leave them vulnerable to this situation—as Tyson found out.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
Providing a workplace free from discrimination has been an ongoing issue for over a century and a half. Congress passed laws barring workplace discrimination as far back as the Civil Rights Act of 1866—a set of laws barring racial discrimination in the workplace which were promptly neutered by a subsequent Supreme Court ruling.
Since then, both State and Federal governments have passed laws to help ensure equality in the work place. Federal law has done this, in part, through Title VII of the Civil Rights Act of 1964. Title VII forbids employers from discriminating against employees on the basis of race, gender, national origin, color or religion. It also prevents employers from retaliating, through termination or otherwise, against employees who report such discrimination.
Extending this protection against discrimination in the workplace to the LGBT community has, unfortunately, been an uphill battle. Just this week, North Carolina convened an emergency session of their general assembly in order to pass a law preempting cities from enacting ordinances from including LGBT persons in their anti-discrimination standards. This law came in direct response to a Charlotte ordinance banning discrimination against LGBT persons which was passed in February of this year.
22 states have passed laws which add protection against discrimination based on either sexual orientation, gender identity, or both. However, no federal appeals court has ever explicitly ruled that Title VII prevents employers from discriminating on the basis of either sexual orientation or gender identity. The U.S. Equal Employment Opportunity Commission, or the EEOC, is looking to change that.
The EEOC is a federal agency tasked with enforcing Title VII and other federal workplace discrimination laws. For the last several year,s they have been working to advance the cause of LGBT people in the workplace. In July 2013, the EEOC declared as an agency that sexual orientation was a protected class as a form of sex-based discrimination. Since then, they have been investigating claims of discrimination based on gender identity or sexual orientation. Recently, the EEOC has brought two separate federal lawsuits alleging discrimination against homosexual employees on the basis of their sexual orientation.
The Cases Brought by the EEOC
The two cases brought by the EEOC both allege a pattern of discriminatory harassment against an employee due to their sexual orientation.
The first lawsuit is against Scott Medical Health Center on behalf of Dale Baxley. Mr. Baxley alleges the he quit due to repeated harassment from his supervisor about his sexual orientation. Mr. Baxley’s supervisor repeatedly called him by derogatory slurs for a homosexual man during Mr. Baxley’s shifts. His supervisor also made derogatory comments about Mr. Baxley’s relationship with his fiancé, including asking “who’s the butch and who is the bitch.” Mr. Baxley complained about the treatment, but after no action was taken he resigned.
The EEOC’s second lawsuit is on behalf of Yolanda Boone, a lesbian woman, and is against Pallet Companies. Ms. Boone also alleges that her supervisor repeatedly harassed her, making bigoted comments such as “I want to turn you back into a woman.” After Ms. Boone complained about the harassment, she was asked to resign. When she refused to do so, she was fired.
In both cases, the EEOC argument is the same. They argue that sex-based discrimination, a protected class under Title VII which protects both men and women, includes discrimination against someone for not conforming to traditional gender stereotypes or norms. Title VII’s prohibition of sex discrimination means that employers may not rely upon sex-based considerations or take gender into account when making employment decisions. The EEOC argues that the definition of sex discrimination has evolved over time and that where employers make employment decisions based on sex stereotypes or gender norms, this is a sex-based employment decision. They argue that Mr. Baxley and Ms. Boone’s supervisors’ objections to homosexual persons comes from just such gender stereotypes.
Why Sexual Orientation and Gender Identity Should Be Protected Classes
The EEOC raises persuasive arguments as to why sexual orientation should be considered a protected class under the classification of sex-based discrimination. These same arguments support protecting employees from discrimination based on their gender identity.
In order to move beyond classifying sexual orientation and gender identity as sex-based discrimination, there would need to be a Congressional Act adding both to the list of protected classes in Title VII. As it stands, a bill of this nature is extremely unlikely to make its way through Congress. However, both sexual orientation and gender identity should qualify as protected classes based on the legal justifications provided for declaring other groups as protected classes.
Courts have historically looked at three elements when forming a new protected class: (1) a long history of discrimination, (2) economic disadvantages, and (3) immutable characteristics. Both sexual orientation and gender identity unarguably qualify on the first two elements. The LGBT community has faced discrimination (economic and otherwise) and hate crimes since the U.S. became an independent nation. After the American Revolution, same-sex relationships were a felony in the United States. Currently, 68% of LGBT persons report discrimination in employment and 16% of all reported hate crimes are committed against LGBT persons. This same discrimination in the workplace shows the economic disadvantages the LGBT community faces.
Some argue that orientation or gender identity are not immutable, despite substantial evidence to the contrary. Studies on the issue have found that sexual orientation and gender identity are either genetic, or influenced by both genetics, hormones, and environmental influences. Either way, sexual orientation and gender identity are not something chosen like a passing fad, but fundamental parts of what makes up a human being. They are certainly more immutable than a person’s religion, which Title VII already treats as a protected class—even covering some white supremacist groups.
The lack of federal protection against employment discrimination allow people like Dale Baxley and Yolanda Boone to be treated as sub-humans in the workplace. Sexual orientation and gender identity both easily pass the test for a protected class. The EEOC is taking steps to help further the cause, but it is time to extend the protections of Title VII to the LGBT community.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
If you were told that your employer could choose whether to give you lunch breaks, you’d probably not expect many lunch breaks. However, in Texas and Oklahoma, the states have allowed employers to decide whether or not to participate in workers’ compensation.
Workers’ compensation is a set of laws which employers are required to abide by in nearly every state. Often called “The Grand Bargain,” workers’ compensation limits liability to employers by allowing employees to forgo their right to sue their employer and providing caps to employer liability in return for medical benefits and wage-replacement. These benefits are given on a no-fault basis and can last indefinitely.
In other words, if you’re injured and it’s your fault, you can still receive benefits for the rest of your life if necessary. These benefits are paid by the employer. The idea behind this system is that employers gain protection from being sued while employees get benefits without having to go through a long and costly legal battle. The workers’ compensation claims are handled by state government departments.
For decades, Texas has followed an opt-out approach to workers’ compensation. Texas employers allow employers to choose whether or not they want to participate in the state’s workers’ compensation program. In February 2014, Oklahoma began allowing companies to opt-out of workers’ compensation as well. Instead, employers may write their own opt-out workers’ compensation plans or purchase liability insurance.
Employer opt-out plans have recently come under attack by news sources such as NPR and Propublica. What’s more, the Oklahoma Workers’ Compensation Commission has unanimously ruled that the opt-out plans violate their State Constitution. The U.S. Department of Labor has even begun an investigation to determine whether these opt-out laws violate federal law.
Despite all this, proponents of these opt-out plans argue that they are better for both employer and employee alike. So what are the arguments for and against these programs?
The Arguments for Opt-Out Plans
Proponents of opt-out plans argue that the plans substantially lower the cost of doing business. The savings are reported to be as high as 40-90% over conventional workers’ compensation. They say that this allows businesses to create more jobs and alleviates the need to “get hung up on squeezing an employee.” In other words, the plans allow companies to be more generous with individual employees. Supporters of the plans also argue that by forgoing the liability protections of workers’ compensation, the threat of lawsuits prevents companies from mistreating employees.
The Dangers of the Opt-Out Plans for Employees
While proponents may argue that opt-out plans can be more individually generous for employees, the opposite has proved to be true in almost every aspect of the plans.
Opt-out plans generally let companies decide what constitutes a workplace injury and thus easily deny claims. The plans also fail to cover a laundry list of items that are normally covered by workers’ compensation plans, such as asbestos exposure and wheelchair vans. While workers’ compensation normally provides benefits for as long as the injury persists, the majority of Texas opt-out plans limit benefits to two-years after an injury or death of an employee.
Although it varies state to state, workers’ compensation normally provides between 2 and 30 days for an employee to report an injury. Opt-out plans often require employees to report within 24 hours or before the end of their shift or have their benefits denied. In one instance, an employee was denied for calling 27 hours after an accident. Another was denied benefits because they did not feel the effects of their accident until after their shift.
Normally, a denied workers’ compensation claim has several avenues for appeal. Opt-out plans only allow appeal through your employer.
Threat of Lawsuits Ensuring Better Plans?
Employers’ opt-out plans do not offer equivalent benefits to state-mandated workers’ compensation. However, the threat of lawsuits could potentially leave employers more safety conscious, balancing out the downsides of the opt-out plans. Unfortunately, it is unlikely that this will be the case as employers choosing to opt-out haven’t exactly been under substantial pressure from lawsuits.
A 2010 Stanford study revealed that 81% of employers saw little to no increase in litigation against them as a result of their choice to opt out of workers’ compensation. There are several explanations for these findings. First, 85% of employers’ opt-out plans require employees to arbitrate rather than sue. Arbitration generally leads to much lower payouts from employers. Another explanation for employers seeing so few lawsuits is mandatory settlement clauses in the majority of employers’ opt-out plans. These clauses state that if an employee turns down whatever offer their employer makes, they will never receive benefits of any kind.
Opt-Out Plans Shifting Costs
It is likely that the dangers of increased liability are sufficiently counteracted by the potential benefits to employers. However, how do these benefits to employers translate to the average taxpayer?
Those who slip through the cracks for workers’ compensation often end up relying on government disability benefits. As an example, 7% of new SSDI beneficiaries in New Mexico in 2010 were due to workplace injuries. If extrapolated to the rest of the country, this costs taxpayers $12B annually. These opt-out systems will leave many more employees unable to work with no access to workers’ compensation other than government disability benefits.
Thus, instead of employers paying for the costs of workplace accidents, these costs are spread across taxpayers. Ensuring a safety net for those who are rendered unable to work is important; however, allowing employers to shift their own costs to taxpayers is a bad policy. No matter how these opt-out plans are implemented, their cost will be borne by the entirety of the public.
There is little question that these opt-out plans will reduce costs to employers. These reduced costs may even lead to more available jobs. However, the cost to employees and the public at large is simply too great. Allowing employers to opt out of responsibility is not a reasonable option.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
Does an employee who is injured while drunk or high deserve full workers’ compensation benefits? New Mexico recently passed S.B. 214, a law which addresses this very issue—limiting worker's compensation to employees who are found to be intoxicated.
If an employer has a written policy barring alcohol and drug use at work and a post-incident test (at the employer’s expense) reveals that the employee was intoxicated during the incident, S.B. 214 reduces that employee’s benefits by 10-90%. The exact amount of the reduction is based on how much the employee’s intoxication contributes to the incident leading to injury or death. Where a worker refuses to submit to a test after an incident, they are denied all workers’ compensation benefits under the law. This law works in addition to an overarching rule that states where an employee’s intoxication is the actual cause of their injury, they receive no benefits whatsoever.
When asked about signing the law, the Governor of New Mexico said, “If an employee is drunk or high on the job, they shouldn't be rewarded with full workers compensation benefits when they injure themselves…It’s a matter of common sense, and that's why I'm signing this legislation.” At first glance, the law does seems like common sense. If somebody chooses to show up to work drunk or high and it leads to an accident, or even contributes to one, it hardly seems fair to hold an employer fully responsible for the results of that person’s poor judgment. The law even takes into account prescription drugs, excluding their effects from the definition of intoxication so as to avoid penalizing workers for their medical conditions.
However, the provisions of the law creating a minimum reduction in benefits offer an exploitable loophole for negligent employers.
S.B. 214’s History of Rejection
S.B. 214 replaces New Mexico’s previous approach to reducing workers’ compensation for intoxicated employees whose intoxication is not the cause of their injury. The old law simply applies a flat 10% reduction in benefits for anybody found to be voluntarily intoxicated at the time of their accident.
The most common concerns raised by opponents to the change have been the increased litigation and the burden to families of intoxicated workers who receive no workers’ compensation or medical benefits. The concern of increased litigation is a real one. It is unlikely that employers will not test every employee in an accident to see if they are intoxicated when doing so has the potential to decrease their liability. Every time that there is an intoxicated employee involved in an accident, there will need to be a full analysis of the facts to determine exactly how much that intoxication impacted the accident. This is a much more involved process than simply determining whether the inebriation actually caused the accident.
S.B. 214 does make efforts to address the concern of burdening the families of deceased or injured intoxicated workers. The law states that intoxication cannot reduce medical benefits of a deceased worker's dependents. This serves to alleviate much of the potential burden on families, but not all of it. Workers’ compensation supports those with workplace injuries that keep them from working, as there is no way to reduce these benefits without putting some strain on those who would rely on that injured worker’s income. Many workers’ compensation systems, including New Mexico’s, are no-fault systems. This means that employees receive benefits even if a workplace accident is their own fault. S.B 214 represents a departure from this underlying tenet in the case of intoxicated workers.
Minimum Reductions: 10% Off For Unsafe Employers
Despite these concerns, there is a reasonable argument behind S.B. 214—where the intoxication of an employee is not the actual cause of their injury, but still contributes, an employer should not be held fully responsible. However, there is no explanation behind requiring a 10% minimum reduction in benefits—regardless of an employee’s actual level of culpability. By deciding to enact a law that requires a full factual analysis of every situation to determine level of culpability, New Mexico has declared that they consider the additional time spent on litigation for this analysis to be worthwhile. So why not allow an analysis determining culpability for 0-100%? The only real reason seems to be that S.B 214 is piggybacking off the very law it seeks to replace.
Employees should not show up to work under the influence of alcohol or drugs. Reducing workers’ compensation to intoxicated employees based on how much their inebriation contributes to an accident is not without basis. That being said, giving what amounts to a 10% discount to an employer who is entirely at fault for injuring their employee is bad policy-making.
Whatever they choose to do going forward, New Mexico’s new law has the potential for an improvement over their previous flat 10% reduction to benefits. However, the arbitrary minimum reduction to benefits must be addressed before employers can use it as a convenient loophole to being held fully accountable for their negligent actions.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law