TOV.WrongfulTermination&Discrimination

Police officer's whistleblower case against City of Ann Arbor is dismissed

Dawn King, a 23-year veteran of the Police Department, suffered two separate injuries to her chest and shoulder during March of 2009.   One resulted from efforts to subdue a prisoner and the injury was apparently aggravated during a training exercise.  The City and its workers comp carrier notified King that it would no longer cover her treatment after an arbitrary date.  It sent King for an Independent Medical Examination (IME) with its hand-selected doctor, who disputed King's doctor's recent confirmation that a bone-scan confirmed a lingering medical issue. 

When the City continued to deny King work comp medical, she sued under the Whistleblower Protection Act, contending that the City's handling of her comp case was retaliation for her efforts, as a union representative, to address unsafe conditions in a City office building. King was apparently pursuing the claim without counsel and she filed hand-written pleadings "admitting" that her supervisors were not aware that she had filed a MIOSHA building complaint when they refused to re-open her workers compensation claim.  In this circumstance, King had essentially admitted that the "adverse employment action" she alleged was not a retaliation for her whistleblowing activities, and therefore she was denied the right to sue.

Appellate Court upholds dismissal of workers compensation retaliatory discharge claim.

Jamie Bush sued Peninsular Realty, claiming that the company fired her from her assisted-living employment after she sought medical treatment for an injury suffered at work.  In Michigan, the employer is required to pay certain minimal wage loss and medical benefits to an employee who suffers a work-related injury.  Under the same law, it is illegal to terminate or discipline an employee who initiates a workers comp claim.  Nevertheless, the Appellate panel upheld Bush's dismissal, relying in part on the fact that she was fired after seeking medical treatment, but BEFORE she actually filed a claim for workers compensation payment.

injured employee loses appeal of retaliation and age discrimination claim

Robert Turnbell sued his employer, Severstal Steel North America, after he was terminated from his job as a production supervisor.  He supervised almost 30 employees daily, working 3 separate shifts, enforcing the employer's rules, regulations and safety conditions.  He was allegedly terminated after violating a "cardinal" safety rule by entering a confined hole to retrieve a ladle without obtaining prior safety approval.  Mr. Turnbull maintained that he was actually fired because he had previously filed two workers compensation claims and pointed to his supervisor's remark that he "had a target on his back" because of these claims.  He also pointed to another manager's disputation of the validity of his comp claims and  argued that he was treated disparately for a minor safety violation because of his age and the comp record.

Worker's lawsuit alleging retaliatory discharge over comp claim is dismissed

James Menghini sued Edwards Automotive, a UP car dealership, alleging that he was illegally fired for filing a workers comp claim.  Menghini had previously suffered two back injuries at work in the parts department, missing short periods of employment and undergoing physical therapy.  On each occasion, the dealership disciplined Menghini for failing to wear a back brace.  After the second incident, he was transferred to a lower pay job in the service department.  When he asked for an increase in pay he was allegedly told that "he was lucky to have a job." 

Developments in FedEx litigation over mis-classification of employees

There were two developments in the past week involving FedEx's controversial practice of calling it's drivers "independent contractors" and forcing them to pay their own unemployment insurance, Social Security, and other legal obligations of the employer.  In Montana, FedEx paid $2.3 million dollars to settle the State's claims that FedEx Ground owed unemployment insurance for drivers.  Only $100,000.00 of the settlement will go to drivers who paid their own unemployment insurance taxes, however, and FedEx is not required to classify the drivers and pay unemployment for them.   The State Attorney General acknowledged that perhaps the only long-term achievement of the lawsuit was the loosening of control exercised by FedEx over the day-to-day activities of the drivers.

Meanwhile, New York's Attorney General filed suit this week to challenge the same "elaborately structured scheme."  In Orwellian terms, FedEx Corp. described the attack on its abuse of employees as a "real assault on the American working class," as though its abusive practices of forcing employees to pay their own unemployment and work comp expenses, and denying them state labor law protections, were somehow in the employees' interest.

There are more than 30 class-action suits pending involving FedEx's mis-classification of "owner-drivers," and its denial of workers compensation, unemployment and other labor law obligations of the employer.  UPS treats the same drivers honestly and meets its obligations to pay taxes and insurance as required under various state laws.

Kentucky Attorney General joins fight against FedEx misclassification of drivers

This week, the Kentucky Attorney General filed suit against FedEx, seeking a court ruling that the company misclassifies its employees as "independent contractors" in order to deny them legislative protections including workers compensation insurance, unemployment insurance and wage and hour protection.  Numerous other states have already taken the same action against FedEx, noting that its mis-classification of employee drivers results in the shift of normal, legislated employer burdens to employees and tax-payers.  UPS, which classifies its employees properly, termed the issue one of basic fairness, noting that it faces unfair competition when FedEx is allowed to thumb its nose at legally-enacted worker protections.

Family of firefighter who died of heart attack receives workers compensation benefits

This week the Court of Appeals upheld the award of workers compensation benefits to the family of a Sterling Heights fireman who died after his third heart attack.  A decision by the "Engler Majority" of the Supreme Court several years ago significantly narrowed the entitlement to workers compensation benefits of employees whose disability stems from other contributing causes in addition to employment conditions.  The firefighter, Randall Paige, suffered his first heart attack while treating an accident victim in 1991.  He suffered injury to the heart and was totally disabled and awarded compensation.  Ten years later he suffered a second, and then a third heart attack which killed him.

Sears admits illegally firing disabled workers

This week, Sears agreed to pay $6.2 million dollars to resolve the EEOC's action against it under the Americans with Disabilities Act.  The EEOC proved that Sears fired hundreds of employees after they sought leave following an on-the-job injury.  Sears had refused to make reasonable acccommodations that would have allowed the injured employees to return to work, instead terminating them as a matter of course.

Study strongly suggests pervasive wage and hour abuse of low-wage employees

This week a new study was released based on a survey of almost 4400 workers in low-wage industries.  The study was created and evaluated by universities including UCLA and CUNY, with support from faculty at the University of Illinois and the National Employment Law Project.  It found that wage and hour abuse of low-wage workers is pervasive and amounts to a "tax" or "conversion" of nearly 15 percent of the employees' earned wages.  Among the findings:

    1.  "Mandatory" workers compensation systems paid medical expenses of only about six percent of low-wage employees who had been injured on the job.

    2.  About 39 percent of low-wage employees were illegal immigrants, 31 percent were legal immigrants and 30 percent were native-born Americans.  Illegal immigrants were most likely to be cheated out of legal wages and benefits, as were women and non-whites.

    3.  These workers are under severe pressure not to file for workers compensation, with only about eight percent of eligible workers who suffer serious injury actually applying for comp benefits.

    4.  More than a quarter of the workers surveyed were paid below the minimum wage the week prior to the survey, and 76 percent were not paid overtime earned.   Median wage was $8.02 per hour and fully 57 percent of the workers did not recieve mandatory pay documents intended to allow workers to confirm the accuracy and legality of their paycheck. 

    5.  12 percent of workers who relied on tip wages reported that their employer had stolen some amount of tip income from them.

Workers compensation exclusive remedy provision upheld

In Stallings v. General Motors Corp., the Court of Appeals again upheld the dismissal of an injury action against the injured employee's employer.  As has been explained in previous web log entries, adoption of the workers compensation scheme resulted in partial immunity for employers' negligence.  People hurt on the job are guaranteed certain benefits including medical expenses and a fraction of their normal wage, but cannot secure complete recovery from their employer, even if the employer is guilty of negligence or gross negligence.