Friday, 31 January 2003 09:00

Suing the boss — a new national pasttime?

Written by Steven Schillinger and Robert Morris, Esq.

Employees are filing lawsuits against employers and supervisors in record numbers, alleging damages in excess of workers' compensation insurance for personal injuries. 

Increasingly, law firms are advertising on late night television to suggest to employees in hazardous workplaces that they can "collect additional money" from a personal injury claim against their company.

Workplace hazard exposure is a problem in the United States; even though the immediate consequences of a worker's illness may not be obvious or severe, an employee with a resourceful lawyer can turn safety laws into an employer's nightmare.

The legal community has capitalized on the public awareness of corporate liability. A recent survey revealed that 84% of American workers believed that the disregard of employee safety is a serious crime, and 75% believed that their companies should hold corporate officials personally responsible for safety violations. But despite increased public concern, safety violations still threaten workers health and continue to increase the insurance rates for workers' compensation.

The regulatory paradox

Since the Occupational Safety and Health Act (OSHA) was passed by Congress and signed by President Nixon in 1970, regulatory laws have become increasingly complex and stringent. But paradoxically, the very laws and codes designed to protect the worker may have contributed in several ways to increasing the incidence of safety violations.

First, because regulated businesses have found it increasingly expensive to comply with the new statutes, more and more are avoiding these costs, even if it means violating the law. Although "notices of violation" continue to increase, a number of businesses are consciously and systematically violating OSHA laws to save money and increase profit margins.

Second, safety violators and their defense counsel are becoming more sophisticated in their methods to defend against personal injury lawsuits. For example, a large number of companies have attempted to shield their involvement in workplace liability through the use of contract labor and shell corporations.

Such actions show that regulation alone is not always enough. The stigma of indictment and the threat of heavy punitive damages, including personal property seizure, are increasingly sought against company owners and corporate officers who flaunt safety laws.

Recent state and federal judgments have made personal injury attorneys equal partners with the regulatory agencies that had been primarily responsible for enforcement. In a handful of jurisdictions, prosecutors, investigators, and regulators have formed innovative and effective strategies for identifying and punishing workplace safety offenders.

Recent cases

The Louisiana Third Circuit Court of Appeal held that a supervisor's action of ordering an employee into a toxic area is considered an intentional act, and therefore, the employee may seek remedies in addition to workers' compensation. In Belgard v. American Freightways, Inc. plaintiff Darrell Belgard filed suit against employer American Freightways and his supervisor, seeking damages for personal injuries he sustained after inhaling toxic ammonium hydroxate fumes while on the job at American's freight terminal.

Belgard also applied for and received workers' compensation benefits for his injuries. Defendants contended that plaintiff's exclusive remedy was workers' compensation benefits. The trial judge agreed and stopped the case before it could go to trial, finding the employer's conduct was not intentional, and that the exclusive remedy of an employee injured on the job is workers' compensation.

The Court of Appeal reversed that judgment, determining that material facts were in dispute concerning whether plaintiff's supervisor intentionally caused Belgard's injury. The Court said, "To order an unprotected worker into an area of toxic fumes that has just been evacuated and to protect other workers is hardly harmless conduct." To get this lawsuit in front of a jury, said the Court in essence, the supervisor's intention need not have been malicious, and he did not need to have an intention to injure the worker. Just knowing what the consequences of his action might be would be enough to let the case go to trial, said the Court.

Lawyers seek out injured workers

Personal injury attorneys are now recovering medical costs, lost wages and benefits, and compensation for pain and suffering, loss of life's enjoyment, and emotional distress associated with industrial accidents when an employee suffers due to unsafe working conditions. In some states, employees are collecting damages caused from accidents that result from negligent training or improper instructions. Parties held liable for the negligent acts leading up to the situation may now be held responsible for any personal injuries and damages suffered because of the exposure or accident.

Television advertisements by lawyers targeting industrial accident and toxic exposure victims have been quite successful in such areas as Los Angeles, California and Dallas, Texas. Personal injury lawyers are undertaking most of these cases on a contingency basis, so even an employee without substantial means is able to sue.

Workplace exposure

Workers are chronically exposed to toxics everyday at high levels. Painters in a body shop are exposed to isocyanates and other chemical toxins. Welders in a body shop can be affected by manganese poisoning that alters nervous system functioning.

For chemicals that are recognized as hazardous, workplace exposure limits are set to protect workers from the harmful effects of toxic poising by the American Conference of Industrial Hygienists (ACGIH), National Institute for Occupational Safety and Health (NIOSH), OSHA, and many other authorities. An example of OSHA law would be for the legal airborne exposure limit of manganese permissible is 5mg/m3 and cannot be exceeded at any time. While ACGIH recommends airborne exposure limit of manganese should be 1mg/m3 as manganese for fume averaged over an 8-hour work shift and is 3mg/m3 for fume as a short-term exposure limit.

Failing to take proper measures to prevent toxic torts is disregarding the safety and well being of individuals. Under regulatory law each worker has the right to a safe workplace. OSHA requires employers to provide a workplace that is free of recognized hazards.


Employers' responsibility

Specifically, employers must prove that they have:

- Provided training about workplace hazards and workers' rights;

- Provided information about OSHA standards, worker injuries and illnesses, job hazards and workers' rights;

- Provided corrections for hazards or violations;

- Provided certified training by licensed professionals in the use and maintenance of personal protection equipment (PPE) to prevent industrial injuries and/or exposure to toxic substances;

- Provided certified research investigations on possible workplace health hazards.

Toxics on trial

Hazardous and toxic substances are defined as those chemicals present in the workplace, in the home, in products or throughout the community that are capable of causing harm. Carcinogens are agents that can cause cancer. These substances may include fumes, dusts, mixtures, and common materials such as paints, fuels, and solvents, or other exposure. OSHA currently regulates exposure to approximately 400 substances.

It is not possible to address the hazards associated with each of these chemicals - some libraries maintain files of Material Safety Data Sheets (MSDS) for more than 100,000 substancess - but it is important to know general information about hazardous and toxic substances, and to know where you can find information regarding a specific harmful agent.

Do not assume that a manufacturer or supplier understands or will warn you of these hazards. Generally, workplace exposures are considered to be at higher levels than public exposures. MSDS's should always be available and contain an indication of carcinogenic potential. The key to reducing the risk of exposure is being aware of possible hazards. However, with the sheer number of chemicals and agents used in our complex world this is not always possible without hiring someone to research the risks.

Avoiding Lawsuits

The law mandates skill training and safety training. OSHA requires a hazard assessment of all workplaces subject to potential hazards. There are more than a hundred OSHA standards that mandate training to prevent employee injury and illness. It's the law. If, as an employer, you do nothing other than document monthly safety meetings, you might be measurably safeguarded. With proof that proper training was performed, you may preserve a defensible position of meeting regulatory requirements.

But your responsibilities do not stop there. Employers are expected to conduct skill training as well. If you are not involved in the skills training of the employees, get involved! It would be self-defeating to invest in skills training without instructing employees in the safe way to perform the tasks. Safety training alone, without assuring employees are skilled in the performance of their jobs, would be absurd. Safety and skills training should be conducted for all new hires and for all employees given new job assignments they are not trained for. Whenever new substances or processes or equipment are introduced to the workplace, training is called for by law.

Training in newly recognized hazards is also required. Supervisors should also attend safety and skills training to make them aware of the hazards present and the precautionary measures for workers under their supervision. It is difficult for an employer to provide proof of job skills training without having some type of documentation to support such a claim.

Employers may need such documentation in the event they are ever cited for a violation or sued for negligence following an industrial accident or toxic exposure. It is very difficult to prove an individual has been adequately trained, when there is no evidence of required knowledge levels necessary to qualify for a specific job.

An employer's checklist

In personal injury cases, complex legal and safety issues may be involved. Like other types of accidents or injuries, no one formula can be applied but legal and factual issues should be thoroughly considered, investigated and resolved. There are a number of recurring issues that should be considered whenever an employee makes a claim. These would include - but are not limited - the following questions:

- Is an employee suffering from a pre-existing illness?

- Have any workers expressed similar symptoms or complaints?

- Has there been a pattern of illness or disease within a common population within a work or geographic area? Keep published documentation!

- Do you have records of each employee's signed acknowledgement of Hazard Communication training?

- Do you have certified records of each employee's medical evaluation?

- Do you have a recorded signature of the certified (independent liability) trainer performing respiratory fit testing of each employee at risk?

- Do you have a recorded signature of the certified instructor acknowledging written and/or performance testing of each employee at risk?

- Do you have a record of each employees signed acknowledgement of regular safety meetings?

- Do you have a record of each and every recordable (OSHA 300 Log) injury or illness hazard assessment, including the individual conducting the assessment, the date, and the work areas evaluated?

- Can you prove when and where employees are exposed to a toxic agent, and for what duration?

- Can you prove who created, manufactured, distributed, or otherwise took part in the selling of the product?

Avoid being vulnerable to a lawsuit

The best approach is to make every effort to avoid being vulnerable in a lawsuit. Protect your workers - this is their right, not a privilege - as you would your family, and assure that your collision repair facility achieves, maintains and documents compliance.

Unfortunately, the outlook for employers can be summed up in one word - "litigation." In this era of restricted budgets for state and federal regulatory authorities, the uniform response from regulatory agencies and civil attorneys has been to increase enforcement activities as a method to promote obedience. Not many years ago, emphasis was placed on educational and advisory activities. Now newspapers and late night television carry the message of greater penalties, jail sentences for senior level managers and increased employee entitlement. These activities can be expected to become more intense, and while perhaps not an efficient method to achieve worker safety, it appears to be the direction in which we are heading.

Don't let the lack of recent inspections by authorities lull you into inactivity. After considering the unpleasant consequences of noncompliance, virtually all-rational employers will conclude that money spent on OSHA compliance and recordkeeping will not only result in a safe and sound workplace but shield against personal injury lawsuits, and insure a better night's sleep.

The authors, Steven Schillinger and Robert Morris, Esq. are associated with PIRK RecordKeeping, Inc., a licensed compliance management company that provides an outsource solution for the bookkeeping and legal risks mentioned in this article (1-888-374-7475 or www.ReComply.com).