February 2, 2016 Kim Krisberg 0Comment

At NPR, reporter Howard Berkes writes about the failure of federal laws to protect workers who are left out of the workers’ compensation system. He begins his story with Kevin Schiller, a building engineer for Macy’s department stores for more than two decades. While working in a storage room in a Macy’s in Denton, Texas, a mannequin fell from 12 feet above, hitting Schiller and forcing him to hit his head on a shelf and then the concrete floor. Berkes writes:

Schiller has hardly worked since, given persistent headaches, memory loss, disorientation and extreme sensitivity to bright light and loud sound.

He now has to post notes on the front door and refrigerator of his apartment, reminding him to take medications and keep appointments. In case he is stopped by police, he carries a letter from his doctor that says he may appear drunk owing to a head injury.

“I’m next to poverty,” Schiller says. “I sit in a dark room. I watch TV like an old 80- or 90-year-old person.”

Schiller, 54, is among 1.5 million workers in Texas and Oklahoma who don’t have state-regulated workers’ compensation to turn to when they’re injured on the job. Millions more may join them as more states consider giving employers the right to opt out of state workers’ comp systems.

Berkes reports that employers who opt out of state workers’ comp systems claim that injured workers are still protected through the federal Employee Retirement Income Security Act (ERISA). However, the federal law isn’t providing for hurt workers as employers have promised. In Schiller’s case, if Macy’s hadn’t opted out of the state workers’ comp system, he could have appealed the company’s denial of benefits and received an independent review of his case. But instead, as Berkes reports:

Schiller was turned away by the state workers’ comp agency and a state court, which cited a mandatory arbitration agreement in the Macy’s opt-out plan. Most of the 50 Texas plans obtained by NPR and ProPublica contain mandatory arbitration clauses.

So Schiller first went through an internal appeals process at Macy’s, which is typical of opt-out plans in Texas and Oklahoma. People paid by employers decide whether employers are fair. Macy’s rejected Schiller’s appeals.

“There is no unbiased arbiter, so there can never be any true fairness,” says Bob Burke, a former Oklahoma commerce secretary who leads legal challenges to Oklahoma’s opt-out law.

Workers theoretically have an easier time taking their cases to federal court. But federal judges, under ERISA, must first determine whether employer decisions are “arbitrary and capricious” and can only reject benefits decisions if employers were unreasonable or did not adhere to their plans.

“You really have to show that [benefits decisions are] irrational or contrary to the terms of the plan,” says Karen Handorf, a private ERISA attorney who spent 25 years enforcing ERISA at the Labor Department.

So as long as employers follow their plans, they are likely to prevail. It doesn’t matter how unfair the plans or decisions may be.

Visit NPR to read Berkes’ full investigation. The article is part of the Insult to Injury series published by NPR and ProPublica.

In other news:

Huffington Post: Reporter Scilla Alecci investigates the impact that toxic lead in electronic recycling facilities has had on workers and their families. She begins her story with Anthony Harrell, who worked in an electronics scraps recycling facility in Cincinnati and ended up exposing his children to the neurological toxin. Harrell said management never alerted him that he’d be handling items containing lead, they never told him to wear protective clothing or to clean his clothes before going home to his family. Alecci writes: “Each time Harrell’s children would touch his hair and hands, or hug him after work, they would inadvertently come in contact with the toxic metal, which is difficult to wash off with normal soap. Jeriyah, now 6, takes medication for attention deficit hyperactivity disorder, and has a hard time learning and staying focused. Her doctors say her difficulties stem from lead exposure.”

KQED: Tracie McMillan reports that farmworkers in California’s Ventura and Santa Barbara counties are joining with low-wage food service workers to call for better wages and a new “bill of rights.” The bill of rights demands that existing worker protections be enforced, such as those regarding rest breaks and wage theft, calls for a worker complaint hotline, and asks that jobs be held for pregnant women who need to leave the field to avoid harmful pesticides, among other measures. McMillan reports: “More than 80 groups back the list of demands in the bill, says Lucas Zucker, policy director for Central Coast Alliance United for a Sustainable Economy, one of the groups leading the charge. The movement has garnered support from the United Farm Workers, Planned Parenthood and Maria Echaveste, who formerly headed up the federal Department of Labor’s wage and hour division.”

Houston Chronicle: Reporter Craig Hlavaty writes about a recent incident between a Walmart worker in Devine, Texas, and an open carry advocate who entered the store with a gun. Video shows a store employee asking the customer to show his handgun license. The two argue and the man with the gun eventually leaves. According to the article, Walmart managers are now tasked with the job of confirming that customers who are openly carrying guns have the proper license. Hlavaty reports: “Brian Nick, the senior director of National Media Relations for Walmart, says that this practice is currently in place in Walmart stores across Texas that sell alcohol (in Texas’ case, that means beer and wine).’We will continue to allow customers to carry firearms on Walmart property as long as they follow local, state and federal firearm laws,’ Nick says.”

San Jose Mercury News: Tracey Kaplan writes about the life and death of Don White, a 63-year-old elevator mechanic who was working in Levi’s Stadium in Santa Clara, Calif., in preparation for this weekend’s Super Bowl game. In 2013, White was working in an elevator shaft when a 14,000-pound counterweight silently dropped toward him, crushing him to death. Cal-OSHA fined White’s employer, Schindler Elevator, $18,000. White was one of two workers killed while working on the stadium in the run-up to the Super Bowl. The second was Ed Erving Lake Jr., 60, who died after a load of rebar tumbled off a forklift and crashed into him. Kaplan writes: “Shortly before Don was killed, he called Wendy (his wife) from his motel room near the stadium in Santa Clara, expressing concern that there were a lot of ‘newbie’ apprentices on the stadium job. One had dropped a tool down the elevator shaft, gouging his arm.”

Kim Krisberg is a freelance public health writer living in Austin, Texas, and has been writing about public health for nearly 15 years.

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