Posts Tagged ‘laws’

Guns on campus: things are heating up in Texas

Thursday, February 24th, 2011

Amid much controversy, the Texas Legislature is considering SB354, a bill that would allow licensed students and professors to carry concealed handguns on college campuses. The bill has passed a Senate committee and has been referred to the Committee of Criminal Justice, where it will be up for a hearing. (Follow SB354). With support from Governor Rick Perry and more than half the members of the House signing on as co-authors, most observers think that the bill will be passed. But according to an article by Patrick Williams in the Dallas Observer, concealed guns on campus is not necessarily a fait accompli: “[Similar] legislation has failed 43 times in 23 states since Virginia Tech,” Malte says, referring to the 2007 campus mass murder that claimed 32 lives. “Every time somebody said this is a done deal over the last three years, it was defeated.”
Utah is currently the only state that allows guns on campus, but legislation is on the docket in several other states. Fox Business News reports that eight other states currently have campus carry legislation underway. These include Arizona, Florida, Michigan, Mississippi, Oklahoma, Nebraska, New Mexico, and Tennessee.
With sympathetic Republicans at or approaching supermajority status in a few of these states, the political stars are in alignment for success. Ultimately, the deciding factor may come down to the strength of student and parental support or opposition. Keep Guns Off Campus says that the American Association of State Colleges and Universities (AASCU) and 271 colleges and universities in 36 states – 189 four-year colleges and universities and 82 community colleges and technical schools – have joined the Campaign to Keep Guns Off Campus. (See Listing). On the other hand,
Students for Concealed Carry on Campus point to widespread support – not the least of which is the mighty power and deep pockets of the NRA.

Follow-on to “Guns at Work”

The spate of campus carry legislation is a natural adjunct to the NRA’s major “guns at work” legislative initiative, which has been sweeping the country in recent years to considerable success. According to the NRA, there are now 13 states that have laws permitting employees to have guns at work: Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Minnesota, Mississippi, Oklahoma, and Utah. While the particulars of these laws vary, such laws generally allow licensed gun owners to keep guns locked in their cars at work, including on employer-owned parking lots. In some states, certain business such as hospitals, schools and prisons are exempt. This is an issue that has pitted the rights of an employer to establish policy for their private property (employer-owned parking lots) against second amendment rights. It’s an issue that has been opposed by employer groups and associations.
For more history on the Guns at Work issue, see prior postings on the topic below.
Three new state laws limit employer restrictions on guns at work
Guns at work: coming to a neighborhood near you?
Workers with guns
Guns at work

Health Wonk Review, medical costs, price hikes, joint & several liability, and more

Thursday, December 11th, 2008

Health Wonk Review — The “Just the Facts, Ma’am” Edition – hosted by Vince Kuraitis at e-CareManagement – Dragnet fans take note!
NCCI report on medical benefits – The medical share of total losses has grown dramatically — from just over 40% in the early 1980s to almost 60% today. NCCI takes a closer look: Analyzing the Shift in the Medical Share of Total Benefits (PDF)
Price hikes forecasted – economists at Swiss Re are predicting a deep recession and price hardening across all lines of insurance through 2010, insurance and reinsurance inclusive.
Walmart death – This topic has been making waves in the law blogs. Troy Rosasco talks about the likelihood that exclusive remedy will preempt any lawsuits in the case of the trampling death of a Walmart employee in a post-Thanksgiving sale stampede, and talks about how the retailer could face criminal investigations. Of course, that doesn’t mean that lawsuits haven’t been filed – Eric Turkewitz updates us on the family bringing suit; Walter Olson offers his perspective on “5 minute after” suits. My colleague Jon had blogged about this last week: Walmart’s Killer Bargains.
Can you say Joint & Several liability? – a recent study profiled in Risk and Insurance shows that small business owners are not fully aware of the financial risks involved in obtaining workers’ compensation insurance through self-insured groups. Despite several high-profile failures, “…85 percent of respondents indicated that they had not seen, read or heard about the closure of several self-insured groups over the past year. More than one-half (58 percent) of respondents reported that they were unaware that companies belonging to self-insured groups remain financially responsible — often for years — for the claims of all companies in their group, not just their own businesses.” See: joint & several liability.
Fumes and confined space – We noted a sad story last month about two amateur winemakers in France who died after being overcome by fumes while trampling grapes. While this might sound like unusual circumstances, the issue of confined space and the danger of fumes is a significant agricultural risk. Hydrogen dioxide-related deaths (PDF) also occur in manure pits – there have been several instances when rescuers enter the pit only to succumb to the fumes as well.

When play becomes work, or the case of the traveling employee

Tuesday, February 26th, 2008

There are various circumstances in which an injury that occurs during a recreational activity might be compensable. One exception might be if the injury occurs on company premises or at a company-sponsored event, a likelihood that approaches near certainty if participation in the event was mandatory. Another common exception is in the case of traveling employees. When employees are engaged in business travel on behalf of their employer, compensable activities may encompass a variety of activities that would likely not be compensable for a “fixed place” employee. For the purpose of workers compensation, a traveling employee is generally considered to be working continuously during the business trip unless a special deviation from business can be determined. Daily life and personal comfort activities that would not be covered at home are generally considered work: eating, sleeping, and traveling, for example, as well as some recreational activities.
Roberto Ceniceros of Business Insurance has a brief write-up of a judgment by Washington’s Supreme Court that offers an excellent illustration of the traveling employee doctrine at work. Alfred Giovanelli was a skilled firebrick mason who regularly traveled the country to rebuild and fix furnaces for Saint-Gobain Corporation (formerly Ball-Foster Glass Container Company). During one assignment at one of the company’s plants in Seattle, he was injured on his day off. He was headed to a park with his supervisor to investigate a concert, but on crossing the street in front of his hotel, he was struck by a vehicle and grievously injured. He applied for and was granted workers compensation. His employer continued to appeal on the basis that the Giovanelli was engaged in a recreational activity that had no business purpose. The appeal wended its way through the various strata of the court until the matter reached the Supreme Court where compensability was upheld. In his article, Ceniceros notes:

The doctrine–also known as the “commercial traveler rule” or the “continuous coverage rule” — generally states that a traveling employee is considered to be in the course of employment during his or her entire trip, except for “a distinct departure on a personal errand,” court records show. The case document – Ball Foster Glass Container Company v. Alfred Giovanelli and the Department of Labor and Industries in the State of Washington – is worth a read. It’s pretty plain-spoken and it illustrates various principles that generally apply to workers compensation. It offers a brief history of how workers comp evolved, and the adoption of the British Compensation Act’s formula of an injury “arising out of and in the course of employment” – nine not-so-simple words that have spawned innumerable court challenges. The document discusses this phrase in this context and moves on to discussing the matter of whether Giovanelli fit the definition of a “traveling employee” (yes) and the meat of the case, whether Giovanelli had “left the course of employment” when he was injured. In its discussion, the court referenced a few cases when compensability for recreational activities was denied:

Although distinguishing between reasonable personal ministrations and purely
personal amusement ventures may be difficult, courts have had little difficulty denying compensation for unusual or unreasonable activities. See, e.g., E. Airlines v. Rigdon, 543 So. 2d 822 (Fla. Dist. Ct. App. 1989) (denying compensation for employee injured during skiing trip at resort over 50 miles from hotel); Buczynski, 934 P.2d 1169 (hot tub injury occurring in hotel 150 miles away from convention
center and days before convention not compensable).

The employer argued that Giovanelli’s activity was a deviation and that crossing a thoroughfare without the right of way was an “inherently dangerous” activity. The Court disagreed, citing the personal comfort doctrine, and finding that negotiating unfamiliar streets is one of the typical risks that a traveling employee faces. In the discussion of personal comfort, the Court stated:

The scope of activities covered by the personal comfort doctrine depends on the particular circumstances of employment. A traveling employee is entitled to broader coverage than a nontraveling employee because a traveling employee is in a significantly different position of risk than a nontraveling employee. The nontraveling employee may satisfy his personal needs without leaving the comfort of home. In contrast, the traveling employee must face the perils of the street in order to satisfy basic needs, including sleeping, eating, and seeking fresh air and exercise.

In evaluating this particular activity, the Court found that Giovanelli’s crossing the street did not represent a significant deviation from the course of employment.
For further discussion on these matters, see Jim Pocius’ excellent discussion of Workers Compensation and Course of Employment. He looks at the issues of course of employment, fixed place versus traveling employees, and scope of employment. He also offers excellent advice to employers on how to minimize risk:

  • Make social events voluntary. An employer should not make attendance at a social event mandatory. The less control that an employer exerts over social events, the less chance there will be that an injury during a softball game, volleyball game, basketball game, etc., will be considered within the course of employment.
  • Enforce work rules. If the employer has a valid set of work rules that are enforced, such employee behavior as fighting, foul language, and wandering to restricted areas of the plant can all be considered activities which would remove the employee from the course of employment.
  • Keep traveling employees to a minimum. There are innumerable cases of traveling employees being hurt while in vehicles, hotels, and restaurants. In order to avoid this liability, traveling employees should be kept to a minimum if your business permits.
  • Do not send fixed place employees on special missions unless absolutely necessary. If your employees work at one location, the employer must try to keep casual missions by these employees to a minimum. Thus, sending an employee to obtain a form at a state office building or run other errands increases workers compensation exposure.
  • Investigate all claims. As always, good factual investigation on any questionable course of employment claims will pay dividends during litigation.

Initial rulings go against W.R. Grace in Libby suit

Monday, October 1st, 2007

In a case that the Justice Department described as as one of the most serious criminal indictments in U.S. history, the Ninth U.S. Circuit Court of Appeals ruled that criminal charges against W.R. Grace executives for “knowing endangerment” could be reinstated.
We recently blogged about asbestos-related illnesses surfacing in workers of a Texas vermiculite plant that was run by W.R. Grace. The plant processed vermiculite from the company’s infamous mine in Libby, Montana. We noted that seven W.R. Grace executives would be facing a criminal trial in September related to deaths that have occurred in Libby. The charges can lead to 15 years in prison on each count
Executives are being charged with exposing Libby residents to asbestos fibers for more than three decades, despite being aware of the dangers of the ore, as indicated by internal company documents. Workers were never alerted to those dangers.

“From 1963 until the early 1990s, Grace mined and processed a large supply of vermiculite ore on a mountain six miles outside Libby. Clouds of vermiculite, which contained tiny shards of dangerous asbestos, were inhaled by the miners and brought home to their families in their clothes.
The health crisis that followed didn’t become national news until 1999 when the Seattle Post-Intelligencer reported that hundreds of vermiculite miners and their families had died and thousands more had become ill. The U.S. Environmental Protection Agency immediately launched an emergency cleanup.”

Last year, a federal judge dropped some charges on a statute of limitations basis and excluded some evidence considered vital to prosecuting the government’s case. But on September 20, the federal Appeals Court reinstated conspiracy and environmental charges against the company and its executives. Prosecutors can now present evidence back to 1976. Studies show that the rate of asbestos-related illness in Libby is 40 times higher than the national average.
We will be following this case, which affects many workers, family members, and townspeople. We suspect that workers and family members of the more than 200 plants nationwide that were processing the ore will also be following this case. Those of us in Massachusetts remember another highly publicized environmental case involving W.R. Grace in Woburn, Mass., a case that had widespread attention due to a book and a film called A Civil Action.