Posts belonging to Category employment law

A Davenport, Iowa, jury awarded the U.S. Equal Employment Opportunity just yesterday the largest-ever verdict in the agency’s history — more than $240 million — in a case involving the long-term abuse of workers with intellectual disabilities.

The class-action case against Hill Country Farms Inc., doing business as Henry’s Turkey Services, was actually covered by me back in April 2011 in this news analysis. Here, too, is the ruling by the U.S. District Court for the Southern District of Iowa, Davenport Division, in September 2012, granting the EEOC partial summary judgment to move forward and also ordering the Goldthwaite, Texas, company to pay the workers $1.3 million for unlawful disability-based wage discrimination.

Coupled with yesterday’s awards of $2 million and $5.5 million for each of the 32 mentally disabled turkey processing-plant workers, for punitive and compensatory damages, respectively, the total judgment — to be exact — comes to $241.3.

The links above, along with this release by the EEOC, spell out all the sad, sordid details of this now-historic case. But just to recap here, the EEOC lawsuit says that, for many years, the owners and staffers of Henry’s Turkey subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment, such as requiring them to live in deplorable and substandard living conditions, and failing to provide adequate medical care when needed.

The EEOC also claims verbal abuses, including frequently referring to the workers as “retarded,” “dumb ass” and “stupid.” Members of the class reported acts of physical abuse as well, including hitting, kicking, at least one case of handcuffing, forcing the men to carry heavy weights as punishment and being dismissive of complaints of injuries or pain.

“The verdict sends an important message that the conduct that occurred here is intolerable in this nation, and hopefully will help to restore dignity and acknowledge the humanity of workers who were mistreated for so many years,” says EEOC Chair Jacqueline A. Berrien.

According to this Fox News account, an attorney for Henry’s didn’t respond to a message seeking comment. But the company’s president, Kenneth Henry, told the Quad-City Times after the trial  that he planned to appeal, calling some of the evidence “terribly exaggerated.”

The news account also says it’s highly unlikely the now-defunct Henry’s Turkey Service has anywhere near enough remaining assets to cover the $7.5 million in damages each man was just awarded.

“Do you think I can write a check for that?” Kenneth Henry, 72, the company’s president, told the newspaper.

But federal officials are vowing to recover every last cent they can for the men, who had been “virtually enslaved” for many years, according to developmental psychologist Sue Gant, who  interviewed them at length for the EEOC, the account states.

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Can an employee’s connection to someone in a protected class be the basis for a successful harassment lawsuit?

It may be, according to the California appeals court ruling that allows former firefighter David Derr to proceed with his claim that a supervisor regularly harassed him for defending his lesbian daughter.

Derr, employed by the Kern County Fire Department for 29 years, claims James Rummell—who became department captain and Derr’s supervisor near the end of Derr’s tenure—made anti-gay remarks in his presence sometime during Rummell’s first year as supervisor. Upon learning Derr’s daughter was gay, Rummell allegedly started to regularly harass him about his daughter’s homosexuality.

According to court records, the harassing behavior reportedly included comments about how gays were “led in that direction” or had experienced childhood traumas that “twisted” them, as well as emails sent to Derr from Rummell’s wife saying his acceptance of his daughter’s homosexuality was a “blatant opposition to the commands of God.” Court records indicate Derr told Rummell he “did not want to hear any more such commentary,” and reiterated that he had a gay family member.

Derr was eventually granted a shift change, but Rummell allegedly continued to stay behind after his own shifts ended in order to further harass Derr, who began to show physical symptoms of stress including insomnia, chronic diarrhea and headaches. Derr attended counseling, but the fire department’s employee assistance program terminated the sessions after three appointments, reportedly informing Derr that “no further treatment was available” and that he should “suck it up” with regard to handling his treatment at the hands of Rummell.

Derr ultimately retired in July 2009, citing Rummell’s abuse among the reasons. He subsequently sued the department, claiming harassment. A lower court dismissed Derr’s complaint, but the appeals court decision reversed that ruling.

This state-level decision only applies to California-based companies, but exemplifies a “noticeable trend” in the workplace, says Ron Chapman, Jr., a Dallas-based labor and employment attorney with Ogletree, Deakins, Nash, Smoak & Stewart.

“Employees are becoming increasingly assertive, and that includes speaking out against perceived wrongs toward others,” says Chapman. “In other words, even when the employee affected by the alleged misbehavior does not complain, one of his or her co-workers might.”

Employers and HR leaders must react accordingly to protect employees as well as the organization, he says.

Depending on the circumstances, it could be unlawful if the person who complains becomes the target of harassment or retaliation, even if the underlying behavior complained about was directed at someone else. To help avoid liability and promote best practices, human resource professionals should update their policies and training programs to ensure they cover this type of scenario.”

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It’s been roughly three years since we reported that East Hanover, N.J.-based Novartis Pharmaceutical Corp., the U.S. arm of the Swiss drug maker, had been fined $250 million in punitive damages. It ultimately agreed to pay $152 million.

We mentioned at the time that the jury verdict served as a reminder of the very steep price companies can pay if they’re on the losing end of one of these class-actions.

Of course, that was prior to the Supreme Court’s Wal-Mart Stores Inc. v. Dukes decision, which made it a lot more difficult to certify class actions.

Well, the attorneys representing the plaintiffs in the Novartis case, Sanford Heisler LLP, are back, this time announcing a class-action case against Tokyo-based Daiichi Sankyo, in which six current and former female representatives are alleging discrimination.

In the complaint, the plantiffs’ attorneys allege that …

Daiichi Sankyo pays female sales employees less than male employees for doing the same work; promotes or advances female sales employees at a slower rate than male sales employees; treats pregnant employees and working mothers of young children adversely compared to non-pregnant employees, male employees, or non-caregivers; and subjects women to other discriminatory terms and conditions of employment.

And that …

 … a discrete group of predominantly male Daiichi executives and senior sales managers keep a tight rein on employment decisions, including decisions regarding sales employees’ compensation, advancement, and other terms and conditions of employment. Through this male-dominated leadership structure, the company has approved and implemented policies, practices and decisions that have systemically discriminated against female employees.

Several reporters were told by the company via email that it does not comment on pending litigation and “complies with all laws regarding equal opportunity and non-discrimination.”

I spoke to Tom Lewis, shareholder and chair of the Employment Litigation Group at Stark & Stark in Lawrenceville, N.J., to get his thoughts on the action.

Lewis predicts that the plaintiff’s attorneys will likely put “front and center” the fact that the firm is Japanese … that “a Japanese company wouldn’t treat its female employees as well as an American company would.”

“But let’s remember,” he adds, “that a class-action lawsuit like this has to be proven”—and that may not be easy.

Lewis notes that he’s represented many foreign-owned companies and his experience is that they “often go above and beyond the call of duty to make sure that, culturally, they’re complying with the laws of this country.”

He also suggests it makes perfect sense that the plantiff’s attorneys would select San Francisco to file the suit in, since the employment laws in California are much more employee-friendly.

We’ll have to watch and see how this case eventually plays out. But this much is certain: The plaintiffs in this case will have a tougher hill to climb in gaining class-action status.

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According to Dr. James Knight, Melissa Nelson was the best dental assistant he ever had.

Unfortunately for her, she was also physically “irresistible” to Knight, who relieved Nelson of her duties at his Fort Dodge, Iowa-based dental practice in January 2010. Her firing came on the heels of Knight’s complaints that Nelson, an employee of 10-plus years, wore tight-fitting, “distracting” clothes at work, and his growing concerns that she posed a threat to his marriage.

In her subsequent lawsuit, Nelson claimed she was fired for her gender. The all-male Iowa Supreme Court, however, recently affirmed a lower court’s decision that her termination broke no discrimination law.

Nelson, a 32-year-old married mother of two, has denied that she dressed inappropriately at work, telling CNN she wore scrubs while on the job. Whatever she wore, Nelson’s appearance seems to have made an impression on her boss. For example, Knight reportedly once told Nelson that “if she saw his pants bulging, she would know her clothing was too revealing,” according to court documents.

And court records indicate that Knight’s allusions to Nelson’s physical attractiveness didn’t stop there. In another alleged exchange, Knight supposedly responded to a comment she made about her lackluster love life by saying, “[t]hat’s like having a Lamborghini in the garage and never driving it.”

Still, the relationship between the two—which both acknowledge never became sexual—seemed to remain cordial. Knight and Nelson swapped friendly text messages outside of work, and she didn’t allege sexual harassment in her lawsuit.

Nevertheless, she was terminated not long after Knight’s wife, who was employed at the same dental office, found out about the text message exchanges, and reportedly demanded that Knight fire Nelson. Knight did just that, telling Nelson that she had become a “detriment” to his family, and suggesting their professional relationship should end for the sake of both their families.

“The issue before us is not whether a jury could find that Dr. Knight treated Nelson badly,” wrote Justice Edward M. Mansfield. “We are asked to decide only if a genuine fact issue exists as to whether Dr. Knight engaged in unlawful gender discrimination when he fired Nelson at the request of his wife. For the reasons previously discussed, we believe this conduct did not amount to unlawful discrimination, and therefore we affirm the judgment of the district court.”

Yes, the Iowa Supreme Court came down on Knight’s side in this case. But he hasn’t exactly seen a groundswell of support elsewhere. The public backlash is well underway on Twitter, at Knight’s Yelp page and various other online forums, where countless users have disparaged the dentist, questioned his moral fiber and encouraged Iowans to boycott Knight’s dental practice.

So, while Knight’s day in court may have turned out in his favor, this particular staffing decision may wind up costing him more than some legal fees in the long run.

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How far can a company go in an attempt to curtail unsafe or unsavory conduct among its employees? The NFL’s Dallas Cowboys are contemplating a move that may test the limits.

In the early morning hours of Dec. 8, Cowboys defensive tackle Josh Brent and Jerry Brown, a Cowboys practice squad linebacker and passenger in Brent’s Mercedes-Benz at the time, were involved in a one-car accident. Brown was killed in the crash, and Brent—who has reportedly admitted to drinking in the hours before his car hit a curb and caught fire—now faces intoxication manslaughter charges.

Less than 48 hours later, former Dallas running back and current Cowboys consultant Calvin Hill told USA Today the Cowboys organization is “considering” a mandate obliging Cowboys players to have electronic devices installed in their cars that would prevent the vehicle from starting if the driver is impaired.

The device, called SafeKey, “includes a small fob that is attached to the key ring, which sends electronic signals to a complementary device that can prevent a vehicle from starting if a driver doesn’t pass a test based on color-coded light emissions.”

When I first saw the USA Today piece, I thought, there’s no way this concept could come to fruition. For starters, it’s tough to imagine the NFL Players Association allowing the Cowboys or any other franchise to impose this type of mandate on its players, and my guess is the NFLPA would do its level best to stop this idea in its tracks.

From a legal standpoint, I also wondered if an organization—be it “America’s Team” or XYZ Corp.—could really go through with this if so inclined.

So, I asked Mark Askanas, an employment law litigator, partner and litigation manager in the San Francisco office of Jackson Lewis.

“It’s an interesting issue” with many questions that employers interested in implementing such a measure must first answer, he says. For instance:

Does the company provide the cars to employees, or does it provide a car allowance such that the car is company property, and the employee should have no expectation of privacy?

“This is easy,” says Askanas, “if it’s a company-provided car versus a car the employee owns but receives an allowance for.”

Would there be a way to turn the device off and on such that the employer could activate it when the employee is driving the car for company business, and then deactivate it when the employee is off from work?

“An accident coming to or from work may still create liability for the employer,” he notes.

Is the person on the company’s vehicular insurance policy, such that the company has an interest in ensuring the employee never drives while intoxicated?

Is this something organizations can offer to employees that they could accept on a voluntary basis?

So, it seems employers may have some legal ground to stand on here, depending on the circumstances and rationale for mandating the installation of such devices. While it remains to be seen if the Cowboys’ idea will ever get past the talking stage, or if other, more everyday organizations will have similar notions, the concept raises some interesting questions about employers’ place in influencing employees’ behavior away from the workplace.

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A recent federal district court decision may give companies a useful weapon to defend themselves in litigation with the Equal Employment Opportunity Commission.

In the case of EEOC v. DHL Express, the U.S. District Court for the Northern District of Illinois has granted the logistics provider’s motion to compel the EEOC to make all claimants in the case available for deposition.

In the suit, a group of 94 black drivers and dockworkers for DHL Express in Chicago claimed they had been unlawfully given less desirable, more difficult and more dangerous route and dock assignments than white employees. In addition, the claimants alleged they were typically assigned routes in predominantly black areas.

The EEOC had refused to let DHL depose all of the claimants involved, contending the vignettes the EEOC had provided for each claimant in the interrogatories were sufficient, as were the company’s depositions of 34 of the plaintiffs. Further, the agency argued that deposing each claimant would be unnecessarily expensive and redundant.

The court, however, determined that “expenses are being incurred based on how the EEOC has decided to prosecute this case overall, including hiring an expert to analyze route assignments. The court will not jeopardize DHL’s opportunity to defend itself in order to accommodate the expense of plaintiff’s litigation strategy.”

This was just one court’s opinion, and others may not apply the same reasoning in the future. But the DHL decision may give the EEOC cause to rethink its approach to litigation going forward, says Jeff Nowak, partner and co-chair of the labor and employment practice group at Chicago-based law firm Franczek Radelet.

“Over the past few years, the EEOC has pursued an aggressive agenda to expand the scope of its charge investigations to focus on systemic discrimination,” he says. “As a result, it regularly subpoenas employer documents that far exceed any semblance of reasonableness. Unfortunately, it has a track record of approaching litigation in a similar fashion.”

The ruling in the DHL Express case, however, levels the playing field to some extent, “in that employers now are better able to confront purported charging parties and class members to test the veracity of these individuals’ claims and mount an adequate defense,” says Nowak.  

Will [this decision] stem the tide of EEOC litigation against employers? No. But it sends a message to the EEOC that it must carefully evaluate potential litigation before filing suit, and set aside any ‘hide the ball’ tactics when engaged in litigation.”

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The recent ruling in a case that one attorney describes as “troublesome” holds a valuable lesson for employers and HR in the proper enforcement of arbitration agreements.

The details, according to a summary from White Plains, N.Y.-based employment and labor law firm Jackson Lewis …

In 2010, the Sports Club Co., headquartered in Los Angeles, revised its employee handbook to include an arbitration agreement that all employees were required to sign as a condition of employment. Susan Gorlach, the organization’s HR director at the time, was responsible for distributing the new handbook to employees and obtaining signed arbitration agreements.

In June 2010, Gorlach told the company’s chief operating officer that all but four corporate employees had signed the arbitration agreement, but neglected to mention that she was among that small group.

In July, Gorlach—still in the process of gathering employee signatures—reportedly suggested the company “think about” how to proceed should an employee ultimately refuse to sign. She resigned the following month, and subsequently sued TSC for wrongful termination, sexual harassment and retaliation, among other claims.

The company denied the allegations. In asking a trial court to compel arbitration, TSC argued that, through her continued employment with the organization, Gorlach assented to the arbitration agreement despite not signing it. A trial court declined to compel arbitration, ruling that Gorlach had, by omission, intentionally misled the company to believe she had signed the agreement. Nevertheless, the fact that Gorlach hadn’t signed led the court to rule that she was not equitably estopped from denying the existence of the agreement, and that no implied contract existed between the parties. The appeals court ruling affirms that decision.

“This is a troublesome case, because the person who was supposed to be the gatekeeper for ensuring the agreements to arbitrate were signed was able to avoid having to arbitrate her claims by a sleight of hand,” says Mark Askanas, partner and litigation manager in the San Francisco office of Jackson Lewis.

Employers’ and HR professionals’ takeaway from the case is clear, he says.

If your agreement to arbitrate specifically requires that employees sign the agreement, it must be signed to be enforceable. The employer’s belief—however reasonable—that an employee signed the agreement will not supplant this requirement.”

Employers can take one of two approaches to enforcing signature requirements, according to Askanas.

First, the agreement can state that disputes are subject to arbitration, regardless of whether the employee signed the agreement. Second, employers can implement a system that tracks the actual signatures to the agreement, and does not rely entirely on someone’s representation, express or implied, that he or she signed the agreement.”

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Came across an interesting just-launched website devoted solely to providing employers and their HR teams with, as the site says, “expert, creative, and cost-effective solutions for managing the burgeoning risk of workplace EEO disputes.”

A bit too focused, you might ask? Au contraire, says Merrily Archer, an employment attorney and founder of Denver-based EEO Legal Solutions and it’s brand new site. Here’ how she describes “the gathering EEO storm” on her home page:

The number of EEOC charges will hit 100,000 in 2012, with increasing prevalence of age, disability, retaliation and systemic (‘disparate impact’) charges. In-house counsel now report that employment matters, both administrative activity and litigation, rank first in amount and frequency. No doubt, the ‘face’ and frequency of discrimination has changed markedly since the Civil Rights Act of 1991, ranging from pro se individual charges to full-blown EEOC systemic investigations and class-action litigation. Given the variable risk inherent in EEOC charges and EEO litigation, employers must master claim avoidance, evaluation, and resource allocation to avoid defraying expensive external ‘solutions’ to comparatively minor EEO problems.

Archer, a former attorney with the U.S. Equal Employment Opportunity Commission, know’s from whence she speaks. She’s been a key and outspoken source for HRE on the EEOC’s aggressive systemic push of late, in this piece, this one, and this, to share just three. She also contributed this byline for us on how to fight back against the push.

Her new site, she says, offers employers’ existing HR and legal teams coaching and training ”to reduce reliance on outside counsel and by extension, expensive ‘solutions’ to more minor EEO problems. Through lean litigation, EEO Legal Solutions proves that employers can still afford to fight when they’re right.”

For your frame of reference, and an understanding of what the EEOC is after, here is the agency’s selected list of systemic hiring resolutions and filings as of April and a full rundown of the systemic focus when it was initially proposed years ago.

I especially like Archer’s blog post on her site itemizing the reasons “Our Workplaces Don’t Work”:

Since the passage of the Civil Rights Act of 1991, our workplaces have become ‘overlawyered’ regulatory quagmires in which employers balance competing laws and risks on a daily basis: the risk of a negligent hiring/entrustment/supervision claim versus the risk of an EEOC systemic investigation over use of pertinent criminal background information; the risk of retaining an underperforming employee versus the risk of an EEOC charge; the risk of workers’ compensation claims against the risks of claims under the Americans with Disabilities Act, as amended, and the absurdly complicated Family and Medical Leave Act; the risk of financial collapse versus the risk of individual and systemic EEO claims arising from a necessary reduction-in-force; the risk of going out of business versus the risk that the EEOC will impose its judgment regarding what constitutes ‘successful’ job performance … and on it goes … employers have become stuck in this ‘damned-if-you-do-damned-if-you-don’t’ EEO regulatory maelstrom, sacrificing basic management considerations of employee accountability, reliability and even competency.

William Tate, president of Chicago-based HR Plus screening solutions, talked about that first risk when he and I met at the Society for Human Resource Management conference this past June. He likened the EEOC’s background-screening mandate to a kind of “Sophie’s Choice” for his clients between following the new rules and keeping their workplaces safe.

The cost alone of retraining recruiters to conduct and document individual reviews for each former convict, he told me, threatens many (especially smaller and mid-sized) employers’ survivals.

And he didn’t even mention the legal costs Archer says she aims to spare employers.

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According to an Illinois district court judge, what an employee does in Vegas … may qualify as FMLA leave.

An employer’s motion for summary judgment was denied in the case of Ballard v. Chicago Park District, which found plaintiff Beverly Ballard claiming her former employer denied her FMLA rights by declining to approve a trip to Las Vegas with her terminally ill mother.

The details …

In early 2006, Sarah Ballard—Beverly’s mother—was diagnosed with end-stage congestive heart failure. In December 2007, Sarah was granted a trip to Las Vegas by the Fairygodmother Foundation, a charitable organization that grants “wishes” to individuals with terminal illnesses. As her primary caregiver, Beverly was to accompany her mother on the excursion.

She claims to have approached supervisor Eric Fischer during a meeting break on Dec. 19, 2007, to request leave for the trip. Beverly Ballard alleges that she discussed FMLA leave with Fischer, and was told she was notifying him too far in advance, and that he would get back to her.

Fischer and Chicago Park District deny the conversation ever happened, and Fischer claimed that he didn’t learn of Ballard’s trip until he received a faxed leave request in January 2008. The Park District maintains that the quality of the fax was so poor that Fischer initially thought it was a request for personal days and thus denied it, according to court records.

Ballard maintains she repeatedly tried to reach Fischer by phone after learning her request was denied, and, while she hadn’t received formal approval, she “believed that her FMLA leave would be approved” based on conversations she had with Fischer’s administrative assistant during this time. Thus, she left for Las Vegas with her mother on Jan. 21, 2008.

During her trip, Beverly Ballard acknowledges shopping with her mother, dining at restaurants and playing slots, while admitting there were “no plans for Sarah Ballard to seek professional medical care, therapy or treatment for her heart condition” during their Vegas stay.

Ballard, who returned to work on January 28, 2008, was fired in March of that year for her allegedly unauthorized absences, and subsequently filed a lawsuit under FMLA.

Under the court’s rationale, the decision “departs from other precedent—which it acknowledges—in holding that the trip on which the caregiver accompanies the patient needn’t be a trip which was itself either part of ongoing treatment or [taken] for the purpose of receiving treatment, says Ronald Meisburg, a Washington, D.C.-based partner in Proskauer’s labor and employment law department.

“Thus, under this court’s ruling, any trip a patient might choose to take would support FMLA leave for the caregiver to go along. This may be overturned on appeal, or eventually become a question for Supreme Court resolution. In the meantime, the rationale of the court introduces a variable that may pose more difficult questions” for employers, he says.

The boundaries of FMLA leave are subject to expansion, and even potential abuse. For example, suppose the caregiver understandably needed a vacation but was the sole caregiver of a patient. Could the caregiver take the patient along on vacation and claim FMLA leave? Or could a caregiver mask his or her own vacation by arranging a trip for the patient, and then going along as the caregiver on FMLA leave?”

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Here’s an interesting one from Missouri. The Missouri Supreme Court ruled recently that a worker who fell while making coffee in the workplace is not covered under workers’ compensation because she could have incurred the same injury outside of work.

The decision reversed an earlier ruling by the state’s Labor and Industrial Commission on the grounds that the injury would only be compensable if it was shown to have resulted from a risk or hazard that couldn’t have occurred elsewhere.

The case, Johme vs. St. John’s Mercy Healthcare, is pretty well-laid out in this summary by Christopher D. Vanderbeek, an attorney with Danna McKitrick specializing in workers’ comp. In essence, Sandy Johme, a billing representative for St. John’s, was clocked in and making coffee in the workplace kitchen when she turned to dump some grounds in the trash and fell off her shoe, landing on the floor and fracturing her hip and pelvis.

The Supreme Court judges upheld an administrative law judge’s initial denial of Johme’s claim for workers’ compensation benefits (reversed by the LIC) on the grounds that “she was not performing her [work] duties at the time of her fall at work,” and she “just fell and … would have been exposed to the same hazard or risk” outside of work.

What does this case mean for Missouri employers, and potentially as precedent for non-Missouri employers? Here’s what Vanderbeek has to say:

In gathering details, employers need to repeatedly ask themselves, ‘Did the risk that caused this injury arise out of the employee’s employment?’ If the employer believes there is any possibility that the answer is ‘No,’ the employer needs to gather all facts that could be even remotely supportive of the ‘No’ answer.

In Johme’s case, relevant facts included that there was nothing on the floor where [she] fell and [her] shoe appeared to play a role in the fall. Johme’s supervisor completed an injury report, on which he stated that [she] was ‘… making coffee in the kitchen, turned to put [coffee] grounds in [the] trash, twisted [her] ankle and fell off [her] shoe… .’ This factual account was noted by the court in its decision, and the court emphasized the fact that Johme fell off her shoe in determining whether the cause of Johme’s injury was causally related to her work activities.

This shows just how important it can be for an employer to proactively gather information when confronted with an alleged accidental injury and how much of an impact that information can have.”

I also ran this case by Merrily Archer, of EEO Legal Solutions in Denver. She says the case “does part with tradition regarding our state courts’ treatment of ‘idiopathic injuries,’ which arise from unknown causes or cases unique to the individual (e.g., congenital birth defect, pulmonary embolism) and not necessarily because of incidents of employment.” She also offered some additional perspective and a word of concern:

Several states, and Missouri may be among them, have – through legislation — made it more difficult for claimants who have some kind of idiopathic injury or other health crisis (e.g., heart attack) at work to establish the ‘compensable’ nature of their workers’ compensation claim, absent some nexus to the work duties.

“And, maybe here’s why: In Colorado, the joke is that folks kill themselves on the slopes, drag themselves into work, and then suffer some kind of ‘accident’ that no one witnessed so that comp will pay.  Historically, as long as the alleged injury occurred at work, it was compensable—i.e., the slip and fall on ice on the employer’s premises, the clumsy person who trips over a paperclip … .

“What also troubles me about this decision is that I see it as introducing the concept of fault into the analysis, which has no place in most states’ ‘no fault’ workers’ compensation system.  Must claimants now introduce evidence at a workers’ compensation hearing that, because of the work environment or their work duties, the employee was more likely to get hurt at work than at home?

“If we go down that road, we’ve compromised a system set up to care for workers without regarding to fault or principles of negligence.  And, what will carriers do with this decision, but increasingly deny claims on this basis and again, muck up a no-fault compensation system with negligence principles?  As public policy, this precedent presents a danger to workers (no pun intended).”

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