Articles Posted in Workers’ Compensation

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A new poll conducted by National Public Radio, the Robert Wood Johnson Foundation, and Harvard’s T.H. Chan School of Public Health shows that many people believe that work is bad for their health.  Here are some of the key findings about working adults in the U.S.:

  • 43% say that their work negatively affects their stress levels;
  • 28% say that their work has a bad effect on their eating habits;
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The U.S. Department of Labor recently highlighted the distressing problem of workplace injuries in the health care industry.  Health care workers, such as nurses and nurse aides, suffer work-related injuries and illnesses at a rate almost twice as high as the rate of workers in private industry.  They suffer injuries from, among other things, moving patients, needle sticks, and exposure to hazardous chemicals and drugs.

This is a serious problem.  “It means that workers who are relatively young have to stop working early in many cases,” says David Michaels, chief of the federal Occupational Safety and Health Administration (OSHA). “They go home and they have real disabilities. They have trouble lifting up their kids. They have trouble doing a lot of the daily tasks of life, because of back injuries, arm injuries, shoulder injuries. It’s a very big deal.”

Many of the injuries that health care workers suffer are preventable.  In some hospital systems, safe patient handling programs have dramatically reduced workplace injuries.  In Veterans Administration hospitals injuries from lifting patients dropped by an average of 40% and in a chain of hospitals they dropped by 80% after implementing safe patient handling programs.  These programs include training staff on proper techniques and utilizing better equipment to lift patients.

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Earlier this year, the Maine Department of Labor issued a report on the number of workplace deaths in Maine in 2011, the most recent year of available data. The report showed that more people died in the workplace during 2011 than during any year since 2003. In 2011, workers died in the workplace at a rate of 4.2 deaths per 100,000 workers, a rate greater than the national average of 3.5 deaths per 100,000 workers.

Transportation related incidents were the most common type of fatal event for workers in 2011. This may come as a surprise to some who think fishing, logging, or construction would be riskier than driving. “In many of those jobs,” however, “people have taken many precautions to avoid those injuries,” said Michael Bourque, senior vice president for external affairs at the Maine Employers’ Mutual Insurance Co., which provides workers’ compensation insurance to Maine companies. “Maybe that says something about our complacency. It’s the stuff you don’t think about, it’s the driving you do every day that’s as risky as anything people do at work.”

The relatively high number of transportation related fatalities in Maine should serve as a warning to commercial drivers. Unfortunately, it is all too common for employers to expect drivers to skirt U.S. Department of Transportation (DOT) rules designed to protect the safety of the drivers and other motorists on the road. For example, companies too often expect drivers to drive more hours than DOT rules allow. If you are a driver and you have decided to take a stand against your employer asking you to violate DOT rules, you should contact an experienced employment lawyer to learn about legal protections against retaliation.

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lumber yard worker.jpgThis week, Maine began to use a new uniform legal definition for who is an “independent contractor” and who is an “employee.” This distinction is important for purposes of determining whether a worker is entitled to workers compensation, unemployment insurance, overtime pay, and other benefits. While employees are entitled to these benefits, independent contractors are not. “Under the old rules, a business could have a worker classified as an employee under worker’s comp but as an independent contractor for unemployment taxes,” said Maine Labor Commissioner Jeanne Paquette. “That made no sense, so the administration and many interested parties from all sides came to the table and worked out a better definition that both the Department of Labor and the Worker’s Compensation Board will apply consistently,” she explained.

Additionally, the new law imposes harsher penalties on employers who intentionally misclassify workers as independent contractors. According to Department of Labor spokesperson Julie Rabinowitz, an employer who misclassifies workers as independent contractors could now face a $20,000 fine from the Department of Labor and the Workers Compensation Board. This will help deter businesses from misclassifying workers in order to gain an unfair advantage against law abiding businesses that correctly classify workers as employees and provide them with legally required benefits like workers compensation insurance and overtime pay.

According to the Maine Department of Labor, the new criteria, effective December 31, 2012, that establish a worker as an independent contractor are as follows.

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Yesterday, the Maine Senate joined the House to approve a controversial measure that overhauls the state’s workers’ compensation system, with major impacts on injured workers. The overhaul comes at a time when insurance rates for Maine businesses are down and MEMIC, the state’s largest workers’ compensation insurer, recently paid a substantial dividend. The vote was 19-16: strict party-line.

The main elements of the program overhaul include:

• Altered eligibility requirements and the creation of a 10-year cap on benefits for employees who are permanently impaired with partial incapacity.

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Today, the Connecticut Department of Labor (CDOL) announced that in January and February, 2012, it issued “Stop Work orders” to 19 companies working on construction projects in Connecticut. One of these companies was Deanes, Inc., a Maine based company that was working on a rest stop on I-95 in Milford, Connecticut. “Stop Work orders,” according to CDOL, “are levied against companies that misclassify workers as independent contractors with the intent of avoiding their obligations under federal and state employment laws covering such matters as workers’ compensation, unemployment taxes and payroll reporting.”

CDOL has collected $250,000 in civil penalties as a result of the Stop Work orders it issued between January 26 and February 23, 2012.

If you believe that your employer has misclassified you as an independent contractor, you should contact an experienced employment lawyer to learn about your rights. By misclassifying you as an independent contractor, your employer may be depriving you of wages by not paying you overtime; or it may be putting your livelihood at risk by not providing you with workers compensation insurance coverage.

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Sen. Susan Collins (R-ME) is sponsoring a bill that would, among other things, return roughly $11 billion to the U.S. Postal Service (USPS) from the Federal Employee Retirement System (FERS). According to Collins, the $11 billion is equal to the amount of money that USPS has overpaid in pension contributions. By returning this money to USPS, it could offer incentives to employees if they retired. The goal would be to reduce the USPS’ workforce by about 100,000 through these incentives.

The bill would also reform the federal workers’ compensation program. According to Collins, the bill “would bring federal benefits more in line with compensation levels offered under most states’ laws, and encourage more employees who are able to work to return to the workforce.”

Joe Lieberman (I/D-CT), Tom Carper (D-DE), and Scott Brown (R-MA) are also sponsoring the bill.

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LD 1571 is a bill sponsored by Assistant House Majority Leader Andre Cushing, R-Hampden that seeks to decimate Maine’s workers’ compensation law, making it harder for injured workers to receive lost time and medical benefits for on-the-job injuries.

The bill, which will be heard by the Legislature’s Labor, Commerce, Research and Economic Development Committee this spring, proposes sweeping changes to the existing workers’ compensation law, nearly all of which favor employers and insurance companies over injured workers. The proposed changes include:

• Instituting a scale of benefits based on the severity of an injury and reducing the overall number of weeks that benefits are paid to injured workers.

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Employers that hire through private temp agencies are not liable for discrimination under the Workers’ Compensation Act, even if they fire an employee the very day after he asserts a work injury. To hold otherwise, says Maine’s Supreme Judicial Court, would require such employers to purchase additional insurance coverage, which is inconsistent with the Legislature’s goals of reducing costs to employers, attracting employers to the state, and cutting costs to the workers’ compensation system as a whole.

In Doughty v. Work Opportunities Unlimited, a divided (6-3) Law Court decided that Charles Doughty, who worked at Poland Springs but was hired through Work Opportunities, a temp agency, and was fired the day after he asserted a work injury, did not have the right to sue Poland Springs for discrimination under Workers’ Compensation Act because Poland Springs was not his employer. The court focused on the fact that Doughty’s contract-for-hire was with Work Opportunities, even though he worked at the Poland Springs’ bottling plant, performing Poland Springs’ work, under Poland Springs’ direction and control. In Doughty’s case, he sought employment at Poland Springs by submitting an application to Work Opportunities. Poland Springs interviewed and hired him. He worked every day at the Poland Springs’ plant, filling, capping and labeling bottles. Poland Springs controlled his schedule and provided all the equipment and machines he worked on. He was paid by the hour, supervised by Poland Spring, and not Work Opportunities. The next day after Doughty got hurt on the job, Poland Springs notified Work Opportunities that they were terminating Doughty.

The Workers’ Compensation Act contains an anti-discrimination provision which states that an employee may not be discriminated against in any way for testifying in a workers’ compensation proceeding or for asserting a claim under the Act. It provides remedies including reinstatement with back pay and benefits, and payment of attorneys’ fees. However, it applies only to an employer against whom the employee has testified or asserted a claim. The court found that Poland Springs was not that employer.

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Many employers in Maine and across the country engage in the practice of misclassifying employees as independent contractors. Misclassification is sometimes called “1099’ing” because of the 1099 tax form independent contractors receive instead of a W-2 form. While misclassification is illegal, it can save employers as much as 30% in payroll and related taxes that they would have to pay if they correctly classified their workers as employees. Employees who are misclassified as independent contractors can miss out on workers compensation insurance, unemployment insurance, fair pay, and other workplace protections.

The National Employment Law Project (NELP) has published a report which identifies the steps various states have taken in the past year to combat the problem of misclassification. The report identifies a new section of Maine’s Workers Compensation Act which sets special rules for when employers can classify workers in the trucking and messenger service industries as independent contractors. Under this statute, workers in these industries are presumed to be employees and employers can only classify them as independent contractors if they can satisfy specific criteria. To illustrate, under this statute, if a worker is not covered by his employer’s workers compensation insurance, and he does not own or lease the vehicle he uses for work, his employer cannot classify him as an independent contractor.

In addition to legislative action, the NELP report identifies some states that have stepped up enforcement of laws already on the books. For instance, in the past year, Massachusetts’ Joint Task Force on the Underground Economy and Employee Misclassification has recovered nearly $6.5 million through its enforcement efforts–which included $2 million in unpaid unemployment insurance taxes. Recently, there have been reports of rising unemployment insurance tax rates in Maine. Increased enforcement actions against employers who misclassify their workers as independent contractors could help eliminate the need to raise these tax rates. If employers who are violating the law are forced to pay the taxes that the law requires them to pay, the rates can be lower for all employers.