Posts Tagged ‘violence’

Annals of Compensability: Violence as a “Normal” Working Condition

Thursday, September 22nd, 2011

Here is a very interesting case from Pennsylvania, where the definition of “normal working conditions” is fraught with terror (and which, as a result, closes the door to comp compensability while potentially opening another to lawsuits). But in our excitement to discuss this intriguing case, we get ahead of ourselves.
Greg Kochanowicz worked as a manager for the Pennsylvania Liquor Control Board. That might sound like an enforcement job, but ironically, his job was selling liquor from a retail outlet. On April 28, 2008, a masked man entered the store, pointed two guns at Greg and a co-worker, and forced them to empty the safe and cash register. The robber prodded the back of Greg’s head with one of the guns. After getting the cash, the robber used duct tape to tie Greg and his co-worker to chairs in the office. There was no physical harm – just the threat of violence if Greg did not cooperate.
Following this incident, Greg suffered from anxiety, depression and flashbacks. He was too traumatized to return to work. Diagnosed with PTSD, he collected temporary total benefits under workers comp for what Pennsylvania calls a “psychic” injury. (It is worth noting that in 1981 Greg’s brother was stabbed to death in a robbery, an incident for which Greg received no counseling or support.)
Abnormal Justice
Greg’s employer appealed the WCJ ruling. A split panel of judges (4-3) reversed the finding of compensability on the basis that armed robberies were a “normal” working condition – and only “abnormal” working conditions lead to compensability for PTSD/”psychic” injuries. That’s a very interesting notion, indeed.
In its reversal, the appeals court noted that robberies were quite common among the Liquor Control Board stores: in the five county area, there were 99 robberies since 2002, an average of one a month. In addition, employees were acutely aware of the risks. They received a written pamphlet entitled “Things you should know about armed robbery.” Greg had read the booklet and received training related to it. In fact, he followed the employer’s written protocol to the letter, thereby avoiding bodily harm to himself and his co-worker.
The appeals court is saying that armed robberies should come as no surprise to liquor board employees. They have been forewarned. And in the view of a majority of the judges, forewarned is foreclosed: there can be no compensability for a psychic injury as a result of normal working conditions. (Had Greg been shot, however, he would have had a compensable injury.)
OSHA to the Rescue?
The appeals court states that having a gun pressed to the back of the head is a “normal” working condition. If this is indeed true, then the employer has put employees in a workplace that is fraught with risk. This is something employers are not allowed to do.
Here is OSHA’s General Duty Clause:

“Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

If the court is correct, if armed robberies are a “normal” working condition, then the employer has failed to eliminate an unacceptable risk. By leaving unarmed employees in high risk areas, they are out of compliance with OSHA standards. Given their knowledge of the likelihood of robberies, they should place armed guards in each store, particularly in evening hours. Their failure to protect employees from an all-too-routine hazard is unacceptable and may be grounds for lawsuits.
This case is wending its way toward the PA Supreme Court, where the arguments of the dissenting judges, led by Renee Cohn Jubelirer, are likely to prevail. Greg will probably qualify once again for workers comp. Yes, he received training in violence; he was well aware of the risks in his job; he even handled the situation with exemplary composure. But there is nothing normal about having a gun pressed into the back of your head, unless you are an actor taping a cop show for cable TV.

Inadequate: Protections for mental health workers

Friday, August 19th, 2011

Sometimes, system redress seems painfully inadequate.
Such is the case with the $7,000 OSHA penalty recently imposed for inadequate safeguards related to the case of murdered mental-health worker Stephanie Moulton. $7,000 is the maximum fine available for “a serious violation of the agency’s “general duty clause” for failing to provide a workplace free from recognized hazards likely to cause serious injury or death.” It’s not just that the dollar amount seems paltry in light of the loss of life – it simply doesn’t seem substantial enough to have any deterrent value.
And in truth, while the OSHA citation points to the employer, one could make the case that the employer is also a victim of an economic squeeze play, which has resulted in inadequate staffing and safety controls. State budget cutbacks worry mental health workers – a scenario that is no doubt playing out throughout the country – in mental health budgets, in public safety budgets, and in regulatory enforcement, just to name a few areas that affect the health and safety of workers — and of the public.
Stephanie Moulton was working alone at one of the North Suffolk Mental Health Association’s group homes in Revere when she was brutally murdered by a patient with a violent record. A week later and just miles away at the Lowell Transitional Living Center, a shelter for the homeless, a worker named Jose Roldan was also killed by person who had slipped through the cracks in the mental health system. Both these murders were discussed in-depth in stories that appeared in The New York Times: A Schizophrenic, a Slain Worker, Troubling Questions recounted Moulton’s death, and Teenager’s Path and a Killing Put Spotlight on Mental Care discussed the case related to Roldan’s death.
An investigation into Moulton’s death resulted in the issuance of a report in June: Report of the Massachusetts Department of Mental Health Task Force on Staff and Client Safety. The report found that:

  • Years of budget cuts have negatively impacted service delivery and safety issues in the following areas:
    –Inadequate numbers of, and inadequate pay for, direct-care staff
    –Inadequate numbers of clinical staff with relevant training and experience
    –Deficiencies in the overall number of acute and intermediate hospital beds and community-based services and beds
    –Decrease in the role of psychiatrists and other highly-trained professionals in the care and treatment of individuals with the most serious mental illnesses
    –Requiring some staff to work under conditions that do not provide for adequate safety
  • There is an absence of system-wide use of a well-designed risk assessment process
  • There is lack of clarity in policies and procedures for incorporating risk variables into Individualized Action Plans
  • There is lack of sufficient access to and sharing of critical safety information
  • There is lack of adequate coordination of care across different components of the service system

OSHA’s citation includes recommendations the employer could take to address the workplace violence issue:

  • Creating a stand-alone written workplace violence prevention program that includes implementation of workplace controls and prevention strategies; hazard/threat/security assessments; a workplace violence policy statement outlining and emphasizing a zero tolerance policy for workplace violence; incident reporting and investigation; and periodic review of the prevention program.
  • Establishing a system to identify clients with assaultive behavior problems and train all staff to understand the system used.
  • Putting in place procedures to communicate any incident to staff so that employees without access to client charts are aware of previous violent or aggressive acts by a client.
  • Identifying the behavioral history of new or transferred clients, including conducting criminal and sexual offender records checks.
  • Conducting more extensive training so that all employees are aware of the facility’s workplace violence policy and where information about it can be found, including training employees to clearly state to clients that violence is not permitted or tolerated; how to respond during a workplace violence incident; recognize when individuals are exhibiting aggressive behavior and how to de-escalate the behavior; and identify risk factors that can cause or contribute to assault.
  • Installing and positioning panic buttons, walkie-talkies, recording security camera systems and smart phone GPS applications to better monitor employee safety and increase staff communication and support; implement and maintain a buddy system on at least the second and third shifts, based on a complete hazard assessment.

Mouton’s family is rallying for enactment of Stephanie’s law, which would mandate panic buttons in mental health facilities. A good start and one among recommendations issued by OSHA in their Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers. But such measures may be woefully inadequate in the face of reduced staffing. In an ongoing climate of budget cuts and a strong public appetite for decreased regulatory controls, mental health workers are likely to continue being at greater risk — along with public safety workers such as police, firefighters, and healthcare workers, who also face dire staffing shortages.

News roundup: Cavalcade of Risk, massive fraud scheme, investigator deaths, premium hardening & more

Wednesday, June 15th, 2011

Cavalcade of Risk – for the biweekly smorgasbord of risk-related news from the blogosphere, check out the new edition of Cavalcade of Risk hosted at Political Calculations.
The $17 million fraud – not chump change – Most employers and insurers get very heated on the topic of work comp fraud – as well they should. But while keeping an eye on the front door for shoplifting, some thieves are loading up the company safe from the back door. This week, four members of a California doctor mill were indicted in a $17 million workers’ comp fraud. This stunning scheme bilked the city of Los Angeles and 19 insurance companies. Joe Wheeler talks more about the fraud and how it exposes a weakness in the system. He rightly notes, “That this relatively small fraud provider ring offering obscure medical procedures could make off with millions of dollars before being caught should make anyone involved in workers’ comp benefits take a breath.” Note to employers: it’s not enough to think your insurer will manage everything – you need to take an active interest in managing and questioning claims, too.
In the line of duty – Louisiana flags are flying at half mast this week for two insurance investigators who were shot to death by an agent last week while investigating fraud. According to Insurance Times, investigators Kim Sledge and Rhett Jeansonne “…had gone to the Ville Platte office of suspended insurance agent John Melvin Lavergne to collect records. Lavergne shot the investigators and then killed himself.” Louisiana is now looking into whether fraud investigators should be able to carry guns.
Is the soft market finally hardening? – Joe Paduda talks about recent reports from Towers Perrin and Fitch Ratings pointing to firming work comp premiums. No, really!
Dollars for doctors – ProPublica has been featuring an ongoing series that investigates the financial ties between the medical community and the drug and device industry. You can follow the entire series from the above link. In addition to several feature stories, there were frequent updates in made in May, several of which discuss drug industry ties to medical societies. In October, ProPublica also rolled out a searchable database of physicians who have received drug money, gleaned from public disclosures of seven large pharma companies. For a sampling, here is Massachusetts.
Ferreting out the more obscure news… – Among all the informative and useful information he posts over at Comp Time, Roberto Ceniceros also manages to ferret out some of the quirkier workers comp stories. This week, he posted about Palin’s emails and the workers comp connection and last week, it was porn industry hazmat suits.
Confined space videosWorkSafeBC produces a lot of great safety resources. Recently, a three-part video series on confined space came to our attention – worth checking them out. Part 1: Safe Yesterday, Deadly Today; Part 2: Test to Live; and Part 3: Rescue: Just Calling 911 Doesn’t Cut It.

Health Wonk Review, Illinois reform, Missouri SIF, mobile risks & more news notes

Thursday, June 9th, 2011

Health Wonk Review – John Irvine & Matthew Holt host a hefty edition of Health Wonk Review over at The Health Care Blog – lots of good health wonkery there!
Illinois work comp reform – After all the sturm und drang in the Illinois reform process, we’ve had a breakthrough … a reform bill finally passed on the last day of the legislative session. In a Tale of Persuasion, AP’s Zachary Colman takes you step by step through the painful process. And at Managed Care Matters, Joe Paduda offers an excellent rundown of some of the key provisions in the Illinois work comp reform bill.
In other Illinois news, the matter of $10 million in repetitive stress claims filed by Menard County prison guards has taken some new twists. The Illinois house recently passed a bill requiring the release of the related workers’ comp test records in compliance with the Freedom of Information Act. A report obtained through the FOIA shows that locking and unlocking prison cells didn’t injure the guards.
Missouri’s second injury fund woesInjured workers in Missouri are being left in the lurch, according to a story in stltoday.com. about the state’s troubled Second Injury Fund Roberto Ceniceros posts more about Missouri’s financially-ill second injury fund.
Mobile risks – Andrew Simpson writes about the increased workers comp exposure as more workers go mobile in Insurane Journal. In the past, the workplace was a clearly defined place and the hours of operation were also clearly defined, but as more and more workers go mobile, things are much less clearly defined – the lines between professional and personal life are blurring. Plus, employers are often supplying the mobile devices to workers, increasing their exposure to claims that occur when off site or off the clock. “Insurance claims professionals say claims made by workers injured while doing things where the relation to their employment is unclear are on the rise and the increasing use of mobile devices is challenging traditional notions of work-related injuries.”
Workplace violence factorsThe Workplace Violence Blog posts about the prevalence of workplace violence as evidenced by a Society of Human Resource Management survey, and states that “Approximately $55 billion a year is lost to litigation awards, property damage and lost productivity from workplace violence. It is estimated that productivity can drop as much as 50% in the six to eight weeks following a workplace violence incident.” The post includes seven common organizational factors that contribute tow workplace violence.
Industry growth – Insurance is one industry that is poised for growth. According to a recent research report issued by IBISWorld, employment in TPAs and and claims adjusting is set to grow 5.7% annually between now and 2016. “Other industries in the IBISWorld top 10 fastest-growing for the next few years include sustainable building material manufacturers, multi-family home builders, used car dealers, remediation and environmental cleanup services.”
MRSA facts from the CDC – From the CDC, MRSA and the workplace, including a list of frequently asked questions. Staph infections, including antibiotic resistant MRSA, MRSA skin infections can occur anywhere. However, the CDC notes that some settings have factors that make it easier for MRSA to be transmitted. These factors, referred to as the 5 C’s, are as follows: Crowding, frequent skin-to-skin Contact, Compromised skin (i.e., cuts or abrasions), Contaminated items and surfaces, and lack of Cleanliness. Locations where the 5 C’s are common include schools, dormitories, military barracks, households, correctional facilities, and daycare centers.

Are nurses and health care workers facing more on-the-job violence?

Monday, March 14th, 2011

If you asked the average person to list professions with the highest rates of violent assault, few would put health care professionals high up on that list. But the reality is that when it comes to workplace violence, nurses, nursing aids, and paramedics have the dubious distinction of being very high up on the list; only police and correctional officers suffer a higher rate of on-the-job assaults. And many nurses say that the violence is only getting worse.
In a fact sheet on violence, The International Council of Nurses, a federation of more than 130 national nurses associations representing the millions of nurses worldwide, says that:

  • Health care workers are more likely to be attacked at work than prison guards or police officers.
  • Nurses are the health care workers most at risk, with female nurses considered the most vulnerable.
  • General patient rooms have replaced psychiatric units at the second most frequent area for assaults.
  • Physical assault is almost exclusively perpetrated by patients.
  • 97% of nurse respondents to a UK survey knew a nurse who had been physically assaulted during the past year.
  • 72% of nurses don’t feel safe from assault in their workplace.
  • Up to 95% of nurses reported having been bullied at work.
  • Up to 75% of nurses reported having been subjected to sexual harassment at work.

Last fall, the issue of safety for nurses and allied health professional was brought to the forefront after the deaths of two California healthcare workers in separate incidents. In October, psychiatric technician Donna Gross was strangled to death and robbed at Napa State Hospital. Days later, nurse Cynthia Barraca Palomata died after being assaulted by an inmate at Contra Costa County’s correctional facility in Martinez. The deaths have sparked a new push for better security and stronger worker safeguards, particularly in settings treating prisoners and psychiatric patients.
While the occupational danger in environments like prisons and psychiatric hospitals is recognized and real, these are hardly the only high-hazard settings in which nurses work. Hospital emergency rooms are widely recognized as a hazardous environment, but violence occurs in other wards, too. Last year, the Well, a NY Times healthcare blog, featured an article by RN Theresa Brown entitled Violence on the Oncology Ward. And the CDC recently spotlighted research focusing on an increase in assaults on nursing assistants in nursing homes. In that study, 35% of nursing assistants reported physical injuries resulting from aggression by residents, and 12% reported experiencing a human bite during the year before the interview. There are no healthcare settings that are immune. Assaults routinely occur in general hospitals, in health clinics, and in patients’ homes.
The perpetrators of violence are varied: While many assaults are by patients, friend and family members of patients also can commit the assaults. There are also rapists or muggers who are targeting healthcare settings or solitary workers; drug addicts and robbers, who are looking for medications; and domestic violence brought into the workplace. And it’s unclear why violence is on the rise. Many point to staff shortages. Others see the preponderance of alcohol, drugs, and ready access to weapons as contributing factors; others think that hospital administrators do too little in the area of prevention.
Some are seeking legislative relief that would require hospitals and healthcare facilities to have safety and security plans and training in place. In a posting on KevinMD.com, respected physician Kevin Pho suggests that the rising tide of violence against healthcare workers might be emblematic of a dysfunctional health system, where healthcare is viewed as a commodity, and the caregiver-patient relationship is deteriorating. He says:

“Sometimes the simplest approaches are the most effective. Rather than adding security or installing metal detectors to prevent hospital violence, doctors and nurses could do a better job of empathizing with patients who are under stress when they are hospitalized or are angry because they’ve waited hours for medical care. At the same time, patients must realize that health care professionals are doing the best they can with an overtaxed health care system and should never resort to violence or abuse.”

In HealthLeaders Media, John Commins discusses an innovative approach undertaken by the University of Wisconsin Hospital and Clinics – a program to codify risk of hospital violence.
Recently, the Emergency Nurses Association issued a Workplace Violence Toolkit, targeted specifically at emergency department managers or designated team leaders.

In the Midst of Mayhem

Tuesday, January 11th, 2011

A deranged man with a high-powered handgun in Tucson, Arizona, has killed six people and wounded many others. We will never really understand what drives an individual to plan and execute this kind of action, just as we cannot fathom why a man (or woman) would in the name of religion strap explosives to their bodies and kill themselves and as many innocent victims as possible. Belief systems are powerful motivators; demented beliefs can bring about appalling results. In these trying times, as the poet Yeats put it, “everywhere the ceremony of innocence is drowned.”
Today we limit our meditation to the role of workers compensation in this incidence of mayhem. Congresswoman Gabrielle Giffords (D-AZ) was holding an informal “Congress on the Corner” gathering outside an ironically named Safeway Supermarket, when Jared Loughner walked up behind her and shot her in the head at point blank range. Somehow, she has survived to this point. One of her aides, Gabe Zimmerman, was killed. For what it’s worth, both are covered by workers comp, as they were “in the course and scope of employment.” A number of Giffords’s volunteers were also injured: their medical bills will likely be covered by comp, but they probably will not receive any indemnity benefits. Innocent bystanders are on their own: whether employed or not, their jobs did not bring them to that fateful location.
Federal Judge John Roll, who was killed, is a special case. The justice department will try to prove that his attendance at the event was an official act: that rather than just casually dropping by to see his friend, Rep. Giffords, he was “in the course and scope of employment” when he left his nearby office to attend the meeting. Why? It is surely not workers comp that concerns the feds; they want to include the murder of Judge Roll in the federal charges against Loughner and can only do so if the judge was technically on the job at the time he was assassinated. (Ironically, the judge had received death threats due to recent rulings.)
The Politics of Mayhem
Some have drawn a direct link between Loughner’s actions and the inflammatory rhetoric of recent political campaigns. When politicians talk of “second amendment solutions” to ideological differences, they are referencing guns. By placing a cross-hair image over an opponent’s photo, they raise the specter of assassination. Based upon the limited evidence of Loughner’s web postings, his actions are likely the result of internal demons. His links to the real world were tenuous at best. He may have thought his actions were political, but like his brethren the suicide bombers, any intended political message is subsumed and ultimately obliterated by sheer madness.
This is by no means the first time that humanity has been confronted with such images of meaningless depravity. Yeats published “The Second Coming” in 1920, just a couple of years after the end of the first world war – the “war to end all wars.”

Things fall apart; the center cannot hold;
Mere anarchy is loosed upon the world.

There was much anarchy then, much anarchy to follow in the dark days of the second world war and, alas, much anarchy in our time.

The Pizza Delivery Chronicles, Part Two: Drivers at Risk

Tuesday, October 5th, 2010

In yesterday’s blog on this topic, we told the story of a pizza delivery driver whose undisclosed seizure problem put others (and herself) at risk. Today we examine the inordinate and ultimately terrifying risks that routinely confront the people who deliver pizzas to homes.
The risks of delivery jobs are embodied in one sad tale. Richel Nova, 58, was a hard working immigrant who worked two jobs, one being delivering pizzas for Domino’s in Boston. He responded to a call from the Hyde Park neighborhood. The address was a vacant home. He was lured into the house, robbed, stabbed multiple times and left for dead. The three thieves took his money ($100) along with the pizza and drove off in his 1995 Subaru. (The age of the car tells us a lot about Mr. Nova.) The abandoned car was found a bit later, along with the blood-stained pizza box. All but three pieces had been eaten.
Nova’s life revolved around his family: twin 20-year-old daughters and an older son. The twins are both juniors in college. All that stood between Nova and a seat at his daughters’s graduation next year were a hundred bucks and a pizza to go.
Robberies of delivery people in the Boston area have been a long-standing problem – 52 were reported through mid-September.
Common Ground Among Competitors
The three main pizza chains – Domino’s, Pizza Hut and Little Caesar’s – have collaborated on developing safety programs for drivers. Among them, they have nearly 90,000 drivers on the road. (Here is the Domino’s description of the job.) Statistically, it’s not difficult to identify the riskiest neighborhoods for delivery, but the chains face pressure from neighborhood groups and the federal government to provide delivery services without discriminating against the poor.
Back in 2000, Domino’s reached an agreement with the Justice Department to formalize a delivery policy for all its restaurants. Reflecting what Domino’s said were well-established standard practices, the new guidelines require managers to evaluate crime statistics with local law enforcement agencies and community groups before limiting delivery. As part of that policy, drivers must report any incidences of violence, and delivery limits must be drawn narrowly. (Easier said than done.)
(Sort of) Managing Risk
There are a number of ideas floating around on how drivers should handle what appear to be risky delivery scenarios:
– Require the customer to come to the car to pay for the delivery and pick up the pizza. (This may not be feasible in all circumstances – for example, disabled customers may not be able to come to the street.)
– Require customers to have exact change for their purchase (and hope against hope that they have a bit extra for the tip!)
– Advise drivers not to enter darkened dwellings
– Limit deliveries after certain hours (in the Boston data mentioned above, many of the robberies took place after 9:00 pm.)
– When in doubt, when confronted with what appears to be immediate risk of harm, the driver is instructed to return to the store (and risk the wrath of legitimate, irate customers awaiting their dinners)
For those of us who have never had a gun or knife thrust into our faces, the dangers confronting delivery workers every day are both frightening and unimaginable. For Richal Nova’s children, any mention of pizza will haunt their thoughts for the rest of their lives – reminding them of their father’s lonely and senseless demise at the hands of cruel thugs with a half-baked plan for a free meal.

Health Wonk Review and other workers comp news notes

Thursday, August 19th, 2010

Joe Paduda is the man of the moment. His Managed Care Matters blog is worth a regular perusal for the informed commentary he offers about the medical side of workers comp. Today, there’s twice as much reason to visit because he’s the host of this week’s Health Wonk Review, in which the focus is on implementing health care reform. Check out this biweekly best of the health policy blogosphere!
Violence on the job – This week, The Hartford Courant posts that the total work comp payout for the shooting at Hartford Distributors could set a record. The company’s workers’ compensation insurer is The Hanover Insurance Group. Reporter Matthew Sturdevant notes that families of deceased and injured workers have one year from the Aug. 3 shooting to file workers’ compensation claims and discusses state benefit levels. (See our related posting from last week about the aftermath of the shooting in Connecticut. )
In another corner of the world, other workers were homicide victims. The New York Times offers a tribute to 10 medical workers who were killed while on a mission to provide aid to remote Afghanistan villages that generally don’t have access to medical care. Workers included 6 U.S. medical personnel and humanitarian workers, one German, one Briton and two Afghans.
Volunteer firefighter case – The Chicago Tribune reports on a recent Iowa court finding in a dispute between two insurers which ruled that a volunteer firefighter must be officially summoned to duty to be covered by workers’ comp. Justin Fauer died while trying to rescue his boss from a manure pit. In addition to being a farm worker at the farm where he died, Fauer was also a volunteer firefighter. According to the report, “The farm’s insurance company, Grinnell Mutual Reinsurance Company, paid the claim but sought for it to be shared by the fire department’s company, Traveler’s Insurance Company, claiming Fauer also responded as a firefighter.” The Iowa Supreme Court upheld a district court decision that “…a volunteer firefighter cannot be summoned to duty by circumstances, but can only be summoned by the fire department or some other official channel.”
Deadline reminder to 9-11 recovery workersGround Zero workers must register by September 13 of this year to be eligible for future worker’s compensation benefits if they are sick or should become sick as a result of 9/11 exposure. Less than half the estimated 100,000 volunteers and workers who are eligible to register have done so. Authorities urge workers to register as a precaution. Joel Shufro of the New York Committee for Occupational Safety and Health says that “”You don’t have to experience symptoms to file for this …You may never use it. We are seeing so many workers now developing symptoms and some are getting worse. So this is a very protective measure, safety net, so people who do get sick in the future will have protection.”
Popcorn Lung – Richard Bales of Workplace Prof Blog posts that an Illinois jury has awarded $30.4 million to a plant worker suffering severe lung disease from diacetyl. See more from on the popcorn lung case from the Joplin Globe.
BP agrees to pay for safety violations at Texas City refinery
Liz Borowski of The Pump Handle reminds us that before BP became synonymous with the Gulf oil disaster, it’s prior “claim to fame” was the 2005 Texas City refinery disaster that killed 15 workers. When OSHA conducted a 2009 follow-up investigation, it issued $50.6 million in failure-to-abate citations, plus $30.7 million for 439 new willful violations it identified. BP had disputed these violations, but last week, agreed to pay the entire $50.6 million.

The aftermath of a CT tragedy

Tuesday, August 10th, 2010

Yesterday was a day of remembrance for the victims of last week’s horrifying shootings at Hartford Distributors in Connecticut – our hearts go out to the family, friends, and coworkers of the deceased. Their lives will be forever changed and imprinted by this terrible event.
In chilling testimony minutes before death by his own hand, we hear the shooter in the deadly rampage calmly relaying his motive to a police dispatcher: “This place right here is a racist place…They’re treating me bad over here. And treat all other black employees bad over here, too. So I took it to my own hands and handled the problem. I wish I could have got more of the people.”
Omar Thornton’s murderous acts left eight coworkers dead and two grievously wounded. The horrifying massacre brought to mind another racially-motivated workplace-based mass murder, the 2003 shooting at a Lockheed Martin plant in Meridian, Miss., which left 6 dead and 8 wounded. Unlike last week’s shooting for which there were few if any advance clues or hints, the killer in Meridian had left a trail of violent threats and behaviors. Many who knew or had worked with Doug Williams feared and even predicted that his threats would culminate in some terrible event.
Whether racism was a trigger in the Connecticut case or not seems a moot point. Even if it were true that racism occurred, as alleged by the family of the shooter, that would not justify such a heinous and wildly disproportionate reaction. Company and union officials deny the allegations of racism and say that no such grievances had been filed or were on record. Yet Thornton’s call and the allegations will likely play a factor as lawyers for the victims seek damages. If victims seek any redress beyond workers compensation, they will face a high hurdle. When litigation is successful at piercing the exclusive remedy shield, it often involves employer misconduct that is highly egregious.
In 2005 and again in 2008, courts barred tort claims for Lockheed victims and upheld workers compensation as the exclusive remedy. Plaintiffs felt they had a strong case and sued Lockheed on the basis of having been deprived of civil rights. They cited a 2004 EEOC report, which stated: “(Lockheed) was aware of the severity and extent of the racially charged and hostile environment created by Mr. Williams, which included threats to kill African-American employees,” the determination by the EEOC’s Jackson office said. “(Lockheed’s) reaction to those threats against African-American employees was inadequate and permitted the racially charged atmosphere to grow in intensity, culminating in the shooting of 14 individuals.”
We noted then and note again now that, while often an imperfect and unsatisfying system, workers comp generally holds up as the exclusive remedy in such cases.
Can employers inoculate against such events?
While most workplace risk can be managed and risk mitigation strategies can be adopted to eliminate or minimize hazards, when it comes to the human heart and mind, preventive strategies can be less certain. There are certainly best practices that can be put in place, predictive profiles and warning indicators that can be consulted, and good hiring and supervisory practices that can be enacted.
Connecticut attorney Daniel Schwartz has been following this event and others on his blog. He recalled another terrible CT event on the 10 year anniversary of the 1998 Lottery headquarters shooting, which claimed the lives of four supervisors. Schwatz has revisited the topic of workplace violence on more than one occasion, offering best practice tips and resources for employer vigilance. In light of the recent tragedy, he asks if there are any lessons to be learned from evil. He concludes:

“Despite all the guidance and advice that can be given, the awful truth is that there really is no way to prevent tragedies like this from ever occurring. An employer can do everything “right” and yet still a rampage ensues by someone committed to carrying out a terrible crime.
That’s not to say that employers should ignore the issue; they shouldn’t. But we also should be careful not to draw conclusions from an incident like this too.
Indeed, as we look for answers from this tragedy, perhaps its best to acknowledge that we can never truly understand what brings people to commit evil and that despite whatever efforts we might make, something like this will sadly happen again.”

Independent Contractors and the (Deadly) Spirit of 1706

Monday, February 22nd, 2010

Joseph Stack set his house on fire and then piloted a small plane into a building housing the IRS in Austin, Texas. His daughter calls him a hero. Most of us would call him a terrorist. But whatever you call him, he was motivated in part by section 1706 of the 1986 Tax Reforms. Stack was a software engineer, and thus was directly impacted by the following language in the statute, which forbids the hiring of software engineers as independent contractors:

(d) EXCEPTION. – This section shall not apply in the case of an individual who pursuant to an arrangement between the taxpayer and another person, provides services for such other person as an engineer, designer, drafter, computer programmer, systems analyst, or other similarly skilled worker engaged in a similar line of work.

As a result of this unusual and highly specific language, programmers are almost always compelled to work as employees. Unlike the situation for most workers – who may or may not meet the criteria for independence – there is virtually no wriggle room for engineers.
Stack’s self-identity as a tax protester goes deeper and taps a rich pathological vein. Envious of the tax exempt status granted to religious organizations, he tried to establish his own church, in his own home. Ten years and $40,000 in tax liabilities later, he gave it up. But he surely did not forget, nor did his daughter, Samantha Bell, who appears to be the last remaining worshipper at the defunct church.
Bell concedes that her father’s actions were “inappropriate.” Nonetheless, she considers him a hero for taking a stand for “justice.” Some stand, some notion of justice! In addition to his own life, Stack’s violent act took the life of IRS manager Vernon Hunter and had the potential for killing many more innocent people.
Ironically, the national consensus building around independent contractors is quite the opposite of what Stack envisioned. There is a concerted effort at the federal and state levels to view most working relationships as employer/employee. The burden of proof has shifted onto the companies (most notoriously, FedEx) that try to avoid taxes by calling people “independent contractors.”
Joseph Stack might have thought himself a martyr for the cause of tax reform. He is surely something else: a symbol of the violence, fanaticism and rage that threatens to destabilize the most enduring democracy the world has ever known. Not exactly my idea of a hero.