Posts Tagged ‘misclassification’

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News Roundup: ACA, WC & Profitability, Pain, Opioids & More

Friday, June 26th, 2015

The big news that’s dominated the week is the Supreme Court decision on the Affordable Care Act subsidies. NAIC’s statement on the ACA ruling sums things up well:

“Uncertainty in insurance is not a good thing. The decision allows regulators, consumers and the industry a level of certainty that supports stability for insurance markets in our states. The NAIC will continue to support state insurance departments – as we have done since the passage of the ACA – and ensure consumers are protected, regardless of the type of exchange in any given state. There are still a number of challenging issues facing health insurance consumers across the country, and U.S. insurance regulators are working together through the NAIC to promote stable and competitive markets.”

Here are some related news stories / opinions we found noteworthy

Is Workers Comp Profitable?
If you haven’t yet checked it out, don’t miss Joe Paduda’s three part posting on the profitability (or lack thereof) of workers comp. Part 1: If workers’ comp is so profitable, why is Liberty Mutual de-emphasizing the business? Part 2: Workers’ comp profitability, Part 3: Workers’ comp profitability.
Related: Boston Globe, Liberty Mutual shedding its workers’ comp roots

New Blog
We’d like to welcome a new work comp related blog to our blogroll – Work Comp Psych Net – an eponymous blog from an organization of the same name. Work Comp Psych Net is a New Jersey-based network of behavioral health practitioners who facilitate return to work. They specialize in addressing psychological and mental health obstacles delaying return to work. such as PTSD, traumatic brain injury, chronic pain, adjustment and mood disorders, and the like.

Virginia
Worker Misclassification – What Employers Need to Know in Light of New Enforcement Efforts
D. Earl Baggett, Amanda Weaver | Williams Mullen, JDSupra Business Advisor: “The Virginia Department of Labor and Industry (“DOLI”) has recently announced the implementation of a new Virginia Occupational Safety and Health (“VOSH”) policy directed at preventing the misclassification of workers in VOSH cases. VOSH will be seeking to identify workers who have been misclassified as independent contractors during the course of VOSH inspections and investigations. Misclassification occurs when an employer improperly classifies a worker as an independent contractor when the worker should be classified as an employee. The new policy, which takes effect July 1, 2015, comes on the heels of Governor Terry McAuliffe’s 2014 executive order establishing an inter-agency task force on worker misclassification and payroll fraud in Virginia.”

Pain
Nancy’s super-simple guide to pain, Jennifer Christian: “Nancy Grover’s June 15 column on Work Comp Central is a super simple guide to pain for anyone who isn’t really interested in the latest science of neurophysiology — but who wants a basic understanding of how the science of pain is changing our view about how to treat it.Nancy interviewed me and wrote her column after reading a white paper entitled Red Herrings and Medical Over-Diagnosis Drive Large Loss Workers’ Compensation Claims released by Lockton Companies. I am one of the co-authors, along with Keith Rosenblum, senior risk consultant at Lockton Companies and Dr. David Ross, a Florida neurologist who is CEO of NeuroPAS Global…”

Massachusetts
Massachusetts: Task Force Says Opioid Abuse an Epidemic – Claims J0urnal: “Massachusetts is in the midst of an epidemic of deadly opioid abuse, according to a task force created by Gov. Charlie Baker that said Monday that drug addiction must be considered a medical disease.
The 18-member group released a total of 65 recommendations in the areas of prevention, education, intervention, and treatment and recovery, after holding a series of meetings around the state in recent months.
“Over the past decade, more than 6,600 members of our community have died because of opioids, and behind those deaths are thousands of hospital stays, emergency department visits, and unquantifiable human suffering inflicted upon individuals, families and our communities,” the task force said in an overview of its report.”

Don Blankenship / Massey Energy
New York Times: ‘The People v. the Coal Baron’ – At Coal Tattoo, Ken Ward Jr. dissects the recent NYT story on Don Blakenship, correcting the record on several counts. Ken Ward offers a sterling example of why local journalism is so vital. As the October 1 criminal trial of former Massey Energy CEO Don Blankenship approaches, we expect more national media coverage, but for the definitive source, you can’t do better than Ken Ward and his coverage at the Charleston Gazette.

More Noteworthy News

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“Calling a dog’s tail a leg does not make it a leg”: Big court loss for FedEx

Monday, September 15th, 2014

Over the years, we’ve devoted a few dozen posts to the issue of FedEx and its drivers. Here’s the issue in a nutshell: FedEx thinks its Ground drivers are independent contractors and the drivers generally disagree.

For the eleven years we’ve been blogging, this issue has been wending its way through state courts, with a win for the company here, a win for the drivers there. On August 27, FedEx suffered a massive one-two punch at hands of the Ninth U.S. Circuit Court of Appeals in San Francisco, who overturned a lower court’s decision in Alexander v. FedEx, ruling that 2,300 drivers were indeed employees. Within a few days, the same court ruled that some 360 Oregon drivers were also employees (Slayman v. FedEx.) In making the ruling, the Court found that when the rubber hit the road, the lower court had overstated the entrepreneurial opportunities factor that benefited the so-called independent contractors. It apparently wasn’t enough of a benefit to sway the court.

To paraphrase our illustrious VP, “…this is a big effing deal.”

Contractors and small business are being chased down aggressively by state authorities (and rightly so, we think) to make them shoulder responsibility for employment obligations that other businesses carry. But in the land of the giant employers, many use independent contractor and subcontractor mechanisms to shield themselves from workers comp, Social Security, unemployment insurance, the provision of benefits like healthcare and paid vacation, and the obligation to protect workers in a variety of ways.
For your further edification on this important issue, we defer to business and legal experts. We’ve gathered opinions and analyses from a variety of sources and offer excerpts.

What court rulings against FedEx mean for workers
“It seems likely FedEx will want to appeal the 9th Circuit decisions to the Supreme Court. But it may face some difficulty in doing so, because — even though made at the federal level — the two decisions concern matters of state law rather than federal. Their reach is similarly limited; they apply only to FedEx drivers in California and Oregon. But there’s a decent chance the 9th Circuit’s decisions will influence future decisions in other jurisdictions. At the very least, they are shining more light on corporations’ maddening reluctance to take responsibility for the folks who represent them most directly to the public.”

FedEx Latest Company Slammed Over ‘Independent’ Employees
“What the 9th Circuit did was to apply the more traditional measure. Judge Stephen Trott, a Reagan appointee in a concurring opinion, quoted Abraham Lincoln: “‘If you call a dog’s tail a leg, how many legs does a dog have?’ His answer was, ‘Four. Calling a dog’s tail a leg does not make it a leg.'” Trott also admonished FedEx for presenting some information out of context and told the company’s lawyers that they “would be well advised not to elide the truth, the whole truth, and nothing but the truth.”

Reagan Appointee ‘Unravels FedEx’s Business Model’ In Court Ruling
“FedEx is largely credited with having pioneered the “independent contractor” work model in the logistics industry. Under this system, workers function as self-employed drivers with their own routes, covering the costs of their own trucks, gasoline, uniforms and so forth.

While corporations claim the contractor system gives drivers flexibility and strong incentives as “small businesses,” critics say it’s simply a way to shift the costs of employment onto workers and avoid payroll taxes and workers’-compensation costs.

The basic question in lawsuits involving the independent contractor model is whether or not a company like FedEx still maintains control over the work itself. In Wednesday’s ruling, the judges asserted that it does.”

Employment Law Summer Recap 2014: Part 1 of 11 – FedEx sings Nico & Vinz’s “Am I Wrong”…to Classify Our Drivers as Independent Contractors?
“The decision will likely upend FedEx’s driver business model in part because it makes it more expensive for FedEx to operate its business – an added expense that we can expect it will pass along to us, the consumers. Why more expensive? Because, among other things, FedEx will now have to (i) make the required employer contributions on behalf of these individuals (i.e. to Social Security and unemployment benefit funds); (ii) take out new insurance policies (i.e. for workers’ compensation insurance); (iii) offer them health insurance and (possibly) pension benefits along with other benefits like paid vacation; (iv) incur the administrative and operational costs associated with treating these individuals as employees (i.e. additional training and development, compliance, etc.); and (v) potentially pay them back for millions in lost wages. Further, these individuals can now sue FedEx under many of the employment laws that did not previously cover them (i.e. Title VII) – yet another potential expense for FedEx.”

Who’s the Boss
“It has become harder and harder for workers to tell who their employer is. Companies have engaged in vertical dis-integration as franchised businesses have become increasingly prominent and contracting out of operations by traditional firms has increased. The expanded reach of private equity funds as owners of Main Street companies has also undermined the traditional employment relationship.

In both cases, a complex web of legally distinct entities has been put in place whose aim is to separate a business’s actual owners and managers from responsibility for the effects of their decisions on workers.”

‘Seismic’ 9th Cir. rulings nix FedEx claim its drivers aren’t employees, could cost company millions
“By retaining independent contractors to perform work instead of employees, companies can potentially save a lot of money that would go toward overtime pay and other benefits such as social security. FedEx also has reportedly required its drivers to pay for their own uniforms and trucks. But if companies are determined to have misclassified employees as independent contractors, they can wind up paying not only the original employee costs they avoided but substantial penalties, as an earlier ABAJournal.com post about the FedEx litigation details.”

Is this the end of the independent contractor as we know it?
“This case also confirms that if you exercise any control over how workers perform services for you, it is likely that they should be classified as employees, not independent contractors. This distinction is important, because, unlike contractors, employee are subject to a host of employment laws, including the anti-discrimination laws, workers’ comp laws, and wage-and-hour (minimum wage and overtime) laws.

While this case only covers employers governed by California law in the 9th Circuit, I would expect the filing of copycat lawsuits under the laws of different states in different courts. In other words, this case is not the final word on this issue. Thus, to answer the specific question I posed in the title to this post, while this case does not necessarily spell the end of the independent contractor, it very well could be the beginning of trend of cases leading down this path.”

FedEx Refuses to Treat Your Friendly Delivery Guy Like a Real Employee And an important new court ruling could change that
“This is a classic example of employee misclassification, but such employer malfeasance is not limited to FedEx. It’s a nationwide problem that shifts significant costs to workers, eliminates employment-related protections, deprives the government of billions of dollars in revenue and prevents workers from unionizing. On Wednesday, labor earned a big victory when the Ninth Circuit Court of Appeals ruled in two cases that the shipping company misclassified the employment status of 2,300 California drivers and 363 Oregon drivers. It’s an important, if limited, step towards rectifying this widespread problem.”

Court rejects FedEx Ground’s driver business model
“Ross said that FedEx now requires its contractors based in California to hire a secondary workforce of FedEx drivers, who do the same work as the plaintiffs under the same contract. She said the Alexander decision “calls into question FedEx’s strategy of making plaintiffs the middle men” between the secondary workforce of drivers and FedEx. “We have heard of many instances where the secondary drivers are earning such low wages that they have to rely on public assistance to make ends meet.”

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North Carolina’s “ghost workers” allow scofflaws to thrive while by-the-book employers suffer

Tuesday, August 28th, 2012

What happens to honest businesses when unscrupulous competitive businesses fail to carry workers’ compensation insurance for their employees? In the difficult economy, some of the honest players have suffered losses while scofflaws thrive. North Carolina’s NewsObserver features an investigative series on Ghost Workers, which takes an in-depth look at the many ramifications of workers’ comp avoidance schemes and the ways that this type of fraud hurts other businesses, the state’s coffers, and any workers who are injured on the job.

State legislators and candidates in the upcoming state elections are competing to raise the outrage meter in the wake of the NewsObserver‘s revelations that as many as 30,000 employers are failing to carry workers’ compensation insurance. Many of these employers are misclassifying workers as independent contractors, so they are also thumbing their noses at other statutory obligations such as taxes, Social Security, unemployment tax, and overtime pay.
Unsurprisingly to those who have followed the misclassification trail in other states, the construction industry offers a fertile climate for fraud to thrive. The NewsObserver explains how a unique bureaucratic loophole in the state can be worked to game the system:

“A business owner, often in the construction industry, tells his insurance agent that he has no employees. He excludes himself from the policy, which is his right as a sole proprietor. He buys a policy to cover a “ghost,” an unknown employee who might unexpectedly join him to work during the year.

These policies can make a business look like it has more insurance coverage for its workers than it has.”

Tax dodging employers can hide under layers of subcontractors, as well as by hiring illegal immigrants. And state agencies that operate in silos are not coordinating to thwart this practice.
Not all the employers are small operations – the expose talks about a firm named Martin’s Bricklaying, which supplied 76,000 hours of labor to help build the $125 million Wake County Detention Center, earning $1,066,538 for this work.

“The company’s owner, Sabas Martin Galeana, has run afoul of state and federal tax obligations in years past, court records show; he settled the last of three liens in 2009. A review of several employees’ recent pay stubs shows that Martin has failed to withhold state and federal taxes as recently as July. The workers say he didn’t provide his workers the tax forms they needed to settle their own obligations.”

The practice of employee misclassification isn’t unique and it’s hardly surprising. But what is surprising is that North Carolina is so slow off the mark when other states and the federal government have been taking aggressive steps to curb misclassification and to penalize scofflaws. We’ve been covering stories of states getting tough on misclassification and workers comp avoidance since 2004. We wonder how the heads of various agencies in North Carolina never noticed. The state has faced serious budget cuts to valued services in recent years, all the while bleeding much needed tax revenue to lawbreakers. Kudos to the NewsObserver for their series.
North Carolina legislators will be working to plug this hole – particularly since it’s an election year. They may also want to sign on to federal efforts such as the
Deparment of Labor’s Misclassification Initiative. Thirteen states have signed Memorandum of Understanding (MOUs) with the Department of Labor’s Wage and Hour Division, and in some cases, with its Employee Benefits Security Administration (EBSA), Occupational Safety and Health Administration (OSHA), Office of Federal Contract Compliance Programs (OFCCP), and the Office of the Solicitor. The DOL says that these MOUs, “will enable the Department to share information and to coordinate enforcement efforts with participating states in order to level the playing field for law-abiding employers and to ensure that employees receive the protections to which they are entitled under federal and state law. Employers that misclassify their employees may not be paying the proper overtime compensation, FICA and Unemployment Insurances taxes, or workers’ compensation premiums.”

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Risk roundup, student athletes, pharma report, misclassification, war of the giants & more

Wednesday, September 21st, 2011

Cavalcade of Risk – The Terrorism, CyberWar, Floods, Bad Mortgages, Robberies, Investment Losses and Disease Edition of Cavalcade of Risk is hot off the press and posted by Jaan Sidorov at Disease Management Care Blog. Check it out!
Tribute to Workers – A few weeks ago, we made a 9/11 memorial post, which focused heavily on the event, the aftermath, and the losses. More recently, we came upon an excellent New York Times feature that focuses on portraits and stories of workers who are rebuilding the World Trade Center, the largest construction project in the United States. It’s a positive testament to the future, to resilience, and to some great American workers. The rebuilding effort has employed 3,200 workers. NYT features more about the WTC rebuilding project.
Student Athletes? – Jared Wade posts about how the NCAA Has Used the Term “Student-Athlete” to Avoid Paying Workers Comp Liabilities – part of a longer article that The Atlantic featured on college sports. Wade notes that, “For our purposes, however, the most interesting excerpt chronicles the how and the why of the NCAA’s creation and widespread promotion of the term “student-athlete.” According to Branch, the main reason that former NCAA head Walter Byers, in his own words, “crafted the term student-athlete” and soon made sure it was “embedded in all NCAA rules and interpretations” was because it was an excellent defense against being held liable for workers compensation benefits that those injured in athletic competition could seek.”
Prescription Drugs – NCCI has issued Workers Compensation Prescription Drug Study: 2011 UPDATE (PDF), a 31 page report. The key findings:
*The indicated Rx share of total medical is 19%; this is slightly higher than the estimate given in our 2010 update
*OxyContin climbs from the number 3 WC drug in Service Year 2008 to number 1 in Service Year 2009
*Hydrocodone-Acetaminophen drops from the top WC drug in Service Year 2008 to number 3 in Service Year 2009
*Recent overall cost increases are driven more by utilization increases than by price increases
*Physician dispensing continues to increase in Service Year 2009 in almost every state
*Increased physician dispensing is associated with increased drug costs per claim *Per-claim Rx costs vary significantly by state
At Managed Care Matters, Joe Paduda offers his educated observations on the pharmacy study.
Agricultural worker protections – Laura Walter of EHS Today writes about A Disposable Work Force: Farm Worker Advocates Push for Agricultural Worker Protections. Her article focuses on a new report published by the advocacy organization Farmworker Justice which criticizes the H-2A temporary guest work visa program. The report claims that it makes agricultural workers vulnerable to poor working conditions. Farm worker advocates argue that to improve these conditions, foreign agricultural workers should be able to seek legal immigration status.
Battle of the giants – In catching up on a backlog of blog reading, we find a post from Roberto Ceniceros’ Comp Time of great interest. It focuses on the battle of the giants chronicling the ongoing dispute between two workers’ comp behemoths, AIG and Liberty Mutual. The dispute is being fought in court, and now in the court of public opinion via dueling websites.
Hunt for misclassification is getting muscle – The Department of Labor and the IRS will be teaming up with other federal agencies and the labor departments of 11 states to share information that will help to track down employers that misclassify workers. For more on this, see Jon Gelman’s post, US Dept of Labor Moves Aggressively on Misclassification of Employees and Dave DePaolo’s post One Way to ID Scofflaw Employers: IRS Co Op
Social Media – The more we use Twitter, the more we like it – we’ve certainly come across some great users and learned about some great pointers and links to breaking news. One Twitter user we’ve found particularly helpful is Kyle Thill posting for @ToyotaEquipment, a forklift dealership from Minneapolis. With 15,000+ followers, he must be doing something right! Safety is one of the ongoing themes of his posts, so if that’s of interest to you, he’s a good Twitter user to follow. He also issues The #Safety Daily Update, which is a curated “newspaper” of web-related safety matters. It’s worth checking out.
Signs of life for the elusive hard market – At Terms + Conditions, Claire Wilkinson talks about an uptick in commercial insurance prices as reported by Tower Watson’s latest commercial lines pricing survey.
Administrative note – We’ve shut down comments due to an unbelievable flood of comment spam. We’re sorry about that – but we don’t have the time to deal with it. If we come up with any new magical solutions to curtail it (we’ve tried many) we may reinstate comments at a later time.

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Health Wonk Review & other noteworthy news of the week

Friday, April 15th, 2011

Health Wonkery – At Health Business Blog, David Williams hosts a concise compendium of assorted health policy news at this week’s Health Wonk Review. He notes that judging by the quality and quantity of entries received for this edition, it’s a wonderful time to be a wonk. These bi-weekly digests are a good way to keep current on healthcare trends – important, given that the medical portion of comp is now accounting for more than half of every claim dollar.
OSHA’s residential fall protection upheld in court challenge – the U.S. Court of Appeals for the Seventh Circuit backed OSHA in a court challenge to its directive to require fall protection measures for residential construction. The directive faced a challenge by the National Roofing Contractors Association’s (NRCA), which sought to maintain an option for residential construction to use alternative protection measures that bypassed some fall protection requirements. Falls are the number one cause of fatalities in construction. BLS shows that about 40 workers are killed each year as a result of falls from residential roofs. “One-third of those deaths represent Latino workers, who often lack sufficient access to safety information and protections. Latino workers comprise more than one-third of all construction employees.”
Trucking & misclassification – The National Conference of Insurance Legislators adopted the Trucking and Messenger Courier Industries Workers’ Compensation Insurance Model Act to address employee misclassification. It would establish six standards, and employees that do not meet the standards would be considered employees. There was wide participation in formulating the standards. Parties offering input to the model law included state insurance and workers’ comp regulators, American Insurance Association (AIA), American Trucking Associations (ATA), Dart Transit Company, FedEx, International Brotherhood of Teamsters, Leadership Conference on Civil and Human Rights, Messenger Courier Association of America (MCAA), National Council on Compensation Insurance (NCCI), National Employment Law Project (NELP), Property Casualty Insurers Association of America (PCI), and United Parcel Service (UPS).
Social media – at Legal Talk Network, two respected & knowledgeable workers comp attorneys – Alan Pierce and Jon Gelman – join forces in a half hour podcast on Privacy, Clients and Social Media. Even if you aren’t an attorney, this is worth a listen. See Gelman’s related article: Facebook Becomes a Questionable Friend of Workers’ Compensation.
WC rate relief? – MarketScout reports that the commercial market is hardening, with workers comp rates either flat or rising. That is borne out in Massachusetts, where a deal was struck to keep rates flat until 2012. This puts a halt to the long-term trend of rate decreases in MA.
More transparency for OSHA rules process – Celeste Monforton at The Pump Handle calls the Obama administration on the carpet for a lack of transparency in safety rulemaking when it comes to meetings with industry representatives. “The President’s own Office of Information and Regulatory Affairs (OIRA) has hosted two meetings with industry representatives who are opposed to an OSHA regulation on crystalline silica, but OIRA fails to disclose these meetings on its website (screenshot 4/11/11.) This is the second time in as many occasions that this OMB office has failed the transparency test when it comes to extra-curricular meetings on OSHA rules. OIRA did the same thing last summer on OSHA’s proposed minor change to its injury recording log. Others have identified even more serious infractions by OIRA, but have yet to receive a response from the White House.”
Reality TV – While we’ve been joshing about upcoming fictional portrayals of workers comp on TV, Roberto Ceniceros at Comp Time points us to an interesting case of reality TV catching mining safety violations in action. A spike TV program about West Virginia coal mining – created by the same folks who do the “dangerous jobs” series – revealed violations that prompted citations from Mine Safety and Health Administration inspectors. It’s an interesting story – Roberto offers the full scoop complete with links.
Legal matters – At LexisNexis Larson’s Spotlight offers another round of Five Recent Cases You Should Know About, with cases spanning the Going and Coming Rule, heat-related illness, a COPD claim, and more.
Disability redefined – Complex Care Blog keeps us updated on bionic legs and other miracles that demonstrate the power of the human spirit and technology to overcome the odds.
Kudos to NAIC – National Association of Insurance Commissioners (NAIC) 2010 Annual Report Pillars of Strength offers “a testimony to the fundamental strength of our national system of state-based insurance regulation.” NAIC has been actively involved in the Patient Protection and Affordable Care Act, including the creation of Medical Loss Ratios, a rate review process, and working with federal and state authorities to establish health care exchanges. The organization has also been active in financial regulatory reform, including a Solvency Modernization Initiative to update US insurance solvency framework, market regulation, and more. NAIC is also noted for its excellent consumer information and fraud awareness initiatives. This includes a great insurance primer for for owners of small companies and home-based businesses: Insure U for Small Business.
Of note – HR Daily Advisor features a great article on six ways attorneys will attack your investigation – not workers comp specific, but a good backgrounder of any potentially litigious employment situation.

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Independent Contractors in Pennsylvania

Monday, February 14th, 2011

If Missouri is the “Show me” state, Pennsylvania is in the running for the “show me the documents” state. They have a way of over-engineering solutions to what may or may not be problems. (See our prior post [“Blood on the Forms“] on requiring injured workers to sign 2 forms at the time of injury.) Now the Keystone state weighs in on the independent contractor conundrum through the recently implemented Construction Workplace Misclassification Act, also known as Act 72.
In tackling the problem of misclassification, Pennsylvania has done something smart: they have limited the scope of the law to the construction industry, where the worst abuses abide. (Massachusetts kicked a hornets nest with an expansive definition of independent contractor that extends well beyond construction.) The statute contains the usual and customary language requiring independent contractors to control the work, work for others and provide their own tools. But in its relentless need for documentation, Pennsylvania requires general contractors and subs to get out the pens and archive some paper. Independent contractors must:
– Have a written contract for every job
– Carry at least $50,000 in general liability coverage for the duration of the job (this requires a certificate of insurance from the agent)
– Document a proprietary interest in their business (how would a sole proprietor do this – tax forms?)
– Realize a profit or suffer a loss for the project (an interesting and potentially problemmatic issue for craftsmen whose spouses are not accountants)
Act 72 prohibits general contractors from forcing subs to sign any contract that results in misclassification. It also forbids retaliation against any person who files a complaint under the law.
The Amish Exception
As we pointed out in a previous blog, Pennsylvania’s Amish population (roughly 51,000 total) is generally exempt from insurance requirements. Amish employers are not required to provide social security or workers compensation coverage, and it appears likely that the Amish will be exempt from the new health insurance standards. When a need arises, they pass the (rather old fashioned) hat throughout their community.
So what happens when an Amish (or non-Amish) general contractor hires an Amish sub? Which of Act 72’s requirements apply to the Amish? Certainly not the general liability insurance. Perhaps not the “profit and loss” and “proprietary interest” documentation. While we are not suggesting that employers seek out Amish subs to avoid Act 72, it might simplify matters. For everyone else in PA, it’s time to focus on the paperwork.

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Cavalcade of Risk #123 and assorted news notes from the blogosphere

Wednesday, January 26th, 2011

Get your biweekly fix of risk: Cavalcade of Risk #123: High-Yield Edition is now posted at The Notwithstanding Blog. There’s an eclectic roundup of posts and you might take the time to visit the host blog too – our blogger is a Canadian med student studying here in the U.S., and posts “tales from medical school, health policy analysis, critiques of the academic medical zeitgeist, and the occasional bonus Canadiana.”
Misclassification in Maine – analysts in the Maine Labor Department estimate that tax losses to the state resulting from misclassification could be as high as $36 million a year. As in many other states, lawmakers had been looking at establishing guidelines and rules for independent contractors. Newly elected Governor Paul LePage abolished the state’s misclassification task force that had been working on this initiative, stating that he would be introducing legislation based on the federal definition.
Union Demographics – Jeffrey Hirsch of Workplace Prof Blog gives us the latest report on union density for 2010: “Overall union density went down from 12.3% to 11.9%; in the private sector, union density went down from 7.2% to 6.9%, and in the public sector, it went from 37.4% to 36.2%.” See more detail at his post.
Vote for Workers’ Comp Notable People – Lexis Nexis announced the finalists in its Workers’ Comp Notable People 2010 – check it out and vote for your favorites. Voters can select two individuals from each of the three categories. The voting period runs from January 23, 2011 through February 4, 2011. Click here to join and vote in the LinkedIn Work Comp Analysis Group.
Food industry – WorkersCompensation.com features an in-depth federal report on Injuries, Illnesses, And Fatalities In Food Manufacturing In 2008, which notes that “Workers in food manufacturing are more likely to be fatally injured and experience nonfatal injuries and illnesses than workers in private industry as a whole. Food manufacturing workers are also much more likely to suffer an injury requiring job transfer or restriction than one that requires days away from work.”
Underwriters – After reading an article on disappearing jobs, Jared Wade of Risk Management Monitor considers whether insurance underwriters are an endangered species now that technology can crunch the numbers.
Sign of changing times? – Roberto Ceniceros discusses how some of the large carriers are letting business walk rather than price it too low. With the combined ratio moving up, many industry analysts have stated that underwriting will make the difference between profit and loss and it appears that some insurers are taking heed.
Technology – Some workers comp insurers are adopting self-reporting options for payroll reporting for employers.
Quick takes

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It’s fresh Health Wonk Review and news roundup day

Thursday, September 2nd, 2010

Grab a coffee and head on over to Hank Stern’s InsureBlog, where he’s posted Health Wonk Review: In the Here and Now. He describes it as a “minimalist” style, which means more meat, less potatoes!
And in other noteworthy news this week:
Twittering insurers – Terry Golesworthy features an interesting post about how insurers are using Twitter, along with lists of insurance leaders by number of followers, by growth and by activity. He observes, “Twitter continues to be used by most insurers to provide soft marketing messages about promotions, sponsorships and customer endorsements. Other activities include financial quizzes, insurance related education materials, warnings regarding impended natural disasters and Facebook announcements. Some insurers do respond publically to customer questions but, largely, this is not the significant activity.” In the comments on his list, insurance agent Ryan Hanley (@AlbanyInsurance) notes that agencies are actually driving the social media movement, and that is based on their using the channel for relationships rather than as a broadcast tool.
Safety is #1 – At The Pump Handle, Celeste Monforton posts that “just in time for the Labor Day holiday,” a new study has been released by the University of Chicago’s National Opinion Research Center, indicating 85 percent of workers rank safety on the job as their top labor standard.
Misclassification – State efforts focusing on employer misclassification continue to be strong and there appears to be a deep vein to mine.

  • In California, Country Builders Inc is paying a whopping $3.9 million in back pay, fines, and payment to the work comp fund as a settlement with a suit filed by the Attorney General for various labor law infractions, including misclassification to avoid workers comp payments. In addition, the company is barred from working on government-funded public works for three years.
  • The New York construction industry should go on notice. Governor Patterson has just signed the Construction Industry Fair Play Act, “…which creates a clear litmus test to distinguish the difference between a worker and an independent contractor. It also provides a method to clearly define which business on a construction project is responsible for which workers. Finally, for the first time in State history, it imposes monetary and criminal penalties specifically for the act of employee misclassification on construction projects.”
  • A new Wisconsin law strengthens enforcement tools for targeting construction misclassification. The law will take effect on January 1.
  • While the construction industry has been a major area of focus, other industries such as the trucking industry have also been targets of probes. And then there is the continuing FedEx driver saga, which my colleague has posted on frequently.

Other employment law litigation – Wal-Mart has appealed for a review by the Supreme Court in a discrimination suit the largest employment discrimination suit in U,S. history. The decade-old case involves more than a million current and former female workers. Steven Greenhouse of The new York Times discusses the issues in the case and the potential $1 billion or more in damages that Wal-Mart could face if the Supreme Court allows a class action suit to proceed.

September is National Preparedness Month – FEMA has designated September as and offers emergency preparation resources for employers. At the Risk Management Monitor blog, commercial risk management expert Brian Smith replies to Emily Holbrook’s questions about disaster preparation and business insurance.

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Massachusetts Comp: The Power of “Any 3 Persons”

Thursday, August 26th, 2010

Massachusetts has been in the forefront of the independent contractor issue. The state has narrowed the definition of “independent contractor” to the point where almost anybody can be defined as an employee. But how do you enforce this? Where is the leverage to confront employers who are avoiding comp premiums by misclassifying their employees as independent contractors?
Under the direct influence of labor unions, the Commonwealth has empowered “any 3 persons” to take action against suspected comp fraud. Governor Deval Patrick recently signed a law that allows any 3 people to file suit against an employer who fails to comply with the workers comp statute. If that sounds pretty broad, well, it is. Here is first section of the new law:

Whenever facts exist showing that an employer has failed to comply with this chapter, then any 3 persons may bring a civil action and that civil action shall be deemed a private attorneys general action….Plaintiffs shall prove a violation of this chapter by a preponderance of the evidence.

I do wonder what those “facts” and the supporting evidence might look like. Beyond that, this language invites lawsuits for any violation of the workers comp statute, a very wide parameter of possibilities, indeed. The focus, however, will be on premium fraud: deliberate misclassification of employees; paying people under the table; and failing to carry workers comp insurance altogether. The plaintiffs can collect up to $25,000 in unpaid premiums and an additional $25,000 in damages, plus “costs and reasonable attorneys fees.”
These suits must be filed no sooner than 90 days after a policy ends (how would the “3 persons” know this date?). Then the process will take an additional 90 days. So six months after the policy ends, all hell breaks loose.
Bitter Remedy
Where are the “3 persons” likely to come from? I’m guessing that disappointed bidders on (increasingly rare) construction projects are likely to team up with disgruntled (former) employees of the successful bidder to form a merry band of 3. You might find three laid off employees/independent contractors jumping in to get back at their former bosses. Heck, the standard of “3 persons” is so low, this game is not much more difficult than playing the state lottery.
It will be fascinating to watch this new statute roll out. Simmering rivalries are going to boil over. The frictional cost of doing business in the Bay State is about to go up. The ultimate question, of course, is how effective this new weapon against premium fraud will be. To the extent it exposes unfair business practices, it will help level the playing field for all Massachusetts employers. But given the broad and ultimately vague language of the enabling statute, there is plenty of opportunity for abuse in this cure for abuse. From a blogger’s perspective, of course, it’s just about perfect.

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Fresh Cavalcade of Risk and other news briefs

Thursday, April 22nd, 2010

Cavalcade of Risk #103 – Risk Management with the Stars Edition is posted at My Wealth Builder. Check it out – and don’t miss Nancy Germond’s post on the alarming increase in the U.S. disability rate.
Misclassification – Employers can expect a heightened focus on misclassification, with a push on both the federal & state levels. Risk & Insurance reports that the Obama administration recently earmarked an additional $25 million in the DOL’s proposed FY 2011 budget for a misclassification initiative. The plan calls for hiring 100 additional enforcement personnel to address the problem and to provide grants to aid states in addressing the problem. Prior studies have indicated that more than 3 million employees may be misclassified. A 9-state study by the DOL found as many as 30% of audited employers misclassified at least some employees.
Fee schedules – Joe Paduda offers his thoughts on the role fee schedules play in workers comp: “…at best, a short term fix, and at worst, a blunt instrument that actually encourages over-treatment and extended disability.” He also cites a column by Greg Krohm, Executive Director of IAIABC, who has a similar take.
New blog finds
First up – as we all watch developments in the new health care law playing out, you might add Covering Health to your reading list. It’s a blog maintained by the Association of Health Care Journalists. While its mission it to keep health & healthcare journalists informed, it’s a good read for anyone tracking the issues. The Association of Health Care Journalists is an independent, nonprofit organization with more than 1,100 members, and is dedicated to advancing public understanding of health care issues. In addition to the blog posts, the blogroll has a good list of health news blogs.
Reinsurance, you say? Try reinsurance girl’s blog. She features a recent helpful post: Who to follow: insurance and reinsurance businesses in social media, which links to more reinsurance resources.
Death on the job – We haven’t linked to the Weekly Toll in some time – it’s a sobering look at recent on-the-job deaths. It puts a human face on statistics and exposes the geographic and industrial diversity of workplace fatalities. In a world that aspires to “zero defect” for product parts, can we aspire to any less when it comes to human injuries?
Hard market – Conning Research & Consulting forecasts that property and casualty insurance rates will begin to firm up in 2011 and that premium will grow modestly at about 2%. But the firm says to expect larger UW losses this year, and a deterioration in loss ratios. Meanwhile, the RIMS Benchmark Survey reports that the soft market still prevails, at least at present.
Virtual medicine – Jon Gelman has an interesting post about the trend to virtual doctors and online medical care, and speculates about whether such technological advances could benefit workers comp.
Massachusetts health care reform – “When Massachusetts’s politicians designed their reform, they calculated that achieving near-universal coverage first would then give all participants in the health care system an incentive to help rein in costs. There are encouraging signs that that is starting to happen.” This according to a New York Times editorial, Health Care Reform and Massachusetts. Thanks to Tinker Ready at Boston Health Blog for the pointer and for more links on Mass. reform.
Quick takes

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