Penalties Against Self-Insured Employers

Repost via Workers’ Compensation Blog

If medical bills aren’t paid when due or medical treatment not authorized in a timely fashion, it can cause significant harm to injured workers and their families. Consistent nonpayment or late payment of medical bills is one of the reasons doctors opt out of treating injured workers. It’s just too much of a headache for the doctor to continually push for payment of their bills. The bill can end up in the hands of a collection agency and, if that happens, the worker’s personal finances are impacted and their credit negatively affected. Late or nonpayment of medical bills can also delay a worker’s recovery.

RCW 51.48.017 is the statute that provides for penalties if a self-insured employer delays or refuses to pay benefits when due. Self-Insured employers interpreted this statute to only apply to “monetary” benefits payable to the claimant, such as time loss compensation, loss-of-earning power benefits, or a permanent partial disability award. The Department issued penalties only for delay in those monetary benefits. The statute states:

If a self-insured unreasonably delays or refuses to pay benefits as they become due there shall be paid by the self-insured upon order of the director an additional amount equal to five hundred dollars or twenty-five percent of the amount then due, whichever is greater, which shall accrue for the benefit of the claimant and shall be paid to him or her with the benefits which may be assessed under this title. The director shall issue an order determining whether there was an unreasonable delay or refusal to pay benefits within thirty days upon the request of the claimant. Such an order shall conform to the requirements of RCW 51.50.050.

The 2012 significant decision by the Board of Industrial Insurance Appeals – In re James C. Coston – changed that “benefit” definition to include medical bill payments.
Under this recent decision, the Department of Labor & Industries can order penalties against self-insured employers for late or non-payment of medical bills for claim-related treatment.

The Department of Labor & Industries has proposed and will implement new administrative rules regarding late payment of medical bills and delayed treatment authorization. The new rules will define how to file the penalty request and when the Department of Labor & Industries will issue a penalty. This will extend the Department’s oversight of self-insured employer actions and will specifically address timely payment of all benefits owed to the injured worker.

Injured workers are entitled to payment of time loss compensation while they are unable to work due to an industrial injury or occupational disease. They and their families rely on accurate and timely payment of all claim-related benefits. Delays in the payment of any type of benefit can cause significant hardship for the worker. Implementation of this new rule is another tool for workers in their fight for benefits.

Paseo

Tuesday, Seattle blew up over the Internet about the closure of the beloved sandwich shop Paseo. Many former patrons didn’t realize that the bigger issue was not that we were losing good sandwiches, but that four Hispanic and Mexican workers were seeking justice against Paseo for discrimination and wage theft.

Since there are so many articles about the topic, we thought we’d condense the highlights here for you.

As WSAJ EAGLE member Matthew Ennis explained to the Business Journal: “This is an interesting case because it brings wage theft to the forefront of conversations. Just because of everyone’s love for a sandwich.”

FOUR FORMER EMPLOYEES CLAIM Paseo Caribbean Food, Inc. engaged in wage theft, denial of breaks, and racially-motivated mistreatment. Paseo Caribbean Food, Inc. denies the allegations.

Photo via The Stranger

  1. Four workers filed suit in September.
  2. The allegations were that they were treated differently, discouraged to seek medical treatment, were forced to work shifts longer than 12 hours, were not provided with one-hour breaks, and were denied overtime wages.
  3. After complaining about the treatment, the workers were fired on March 13 this year.
  4. Paseo disagrees. They say workers were fired for “unsatisfactory job performance, abusive language, and threatening other employees.” They also say the workers were at-will.
  5. $50 billion in wages are stolen from workers each year, which could pay for 1.2 million $20/hr jobs.
  6. Some people asked whether the employees were documented immigrants, but that doesn’t matter legally:
    “You will get, sometimes, a defense council threatening, ‘Well, these guys are illegal and we’re going to make an issue out of that.’ But it doesn’t really wash because my understanding of the Washington Minimum Wage Act and the Washington Law Against Discrimination is it applies to undocumented workers also. It’s a public policy that type of argument too, you can’t have employers knowingly employing undocumented workers and then having them do slave labor. It doesn’t matter whether you’re undocumented or not, they’re entitled to protection of the law.”
  7. A study by the Center for Urban Economic Development, the National Employment Law Project and the UCLA Institute for Research on Labor and Employment found that 76% of low-wage employees were not paid deserved overtime and that foreign-born Latino workers were more affected by wage violations than any other demographic.

No matter the outcome of the suit, we agree with Ennis that this brings attention to a very serious topic. WSAJ will continue to fight for laws pertaining to wage theft, misclassification, and retaliation against employers in the upcoming legislative session.

Washington among least expensive workers’ comp states

Workers’ compensation, as described by Cornell University, is made of “laws [that] protect people who are injured on the job. They are designed to ensure that employees who are injured or disabled on the job are provided with fixed monetary awards, eliminating the need for litigation.” Workers’ comp is how we protect employees. It is a vital part of our state’s framework and helps injured people seek justice. But some people are attacking it, according to The Stand.

According to the latest state-by-state comparison on national business competitive assessments, Washington is among the least expensive states for actual employer costs paid for workers’ compensation.

Chief Actuary for the Washington State Department of Labor and Industries (L&I), only ten state have less expensive coverage to employers:

Strangely, (or perhaps not so strangely) the Washington Roundtable, which represents big business CEOs in the state, tried to declare that “Washington is the most expensive state in the nation for workers’ compensation benefits paid per covered worker.” This was partially in response to L&I’s proposal to increase the average workers’ comp rate by 1.8 percent to keep up with wages and to help rebuild the system’s reserves.

As it would turn out, the Roundtable wasn’t referring to what employers pay, but to the benefits provided to injured workers. That is, they aren’t complaining about the cost, but our high level of care for injured and disabled workers.

They point to reports from the Oregon Department of Consumer and Business Services and the National Academy for Social Insurance, picking out certain statistics, ignoring the rest, and not noticing that these studies fail to take into account several factors. Oregon’s study, for example, misses additional costs such as the Stay at Work program and Supplemental Pension Fund, retrospective refunds, and that Washington is the only state in the nation where workers pay a portion of the cost.

Big businesses are trying to misuse this data to encourage policy makers and legislators to cut benefits to workers. This is simply another case of putting profits over people.

Wage Theft Update

Salon earlier this week explained some of the ways wage theft affects so many workers. Some of those most affected include:

Undocumented immigrants

Many undocumented immigrant day labors survive by standing on street corners and selling their labor to drive-by construction and landscaping contractors. Unfortunately, far too many contractors refuse to pay after the work is done… If they report the theft, they run the risk of being reported to U.S. Immigrations and Customs Enforcement. Instead, most just go back to their corners hoping to find more scrupulous contractors.

Fast food workers

Next come the fast-food workers who work overtime, but rarely see the time-and-a-half to which they are entitled by law. Franchise managers at McDonald, Burger King, Pizza Hut, Wendy’s and the like steal those hours by fiddling with the logs.

Factory workers

Move up the food chain a bit and you’ll find the Amazon worker who must line up for 25 minutes to pass through “egress security”—screeners to stop pilfering. Amazon says this is not “integral and indispensible” to the job, and therefore, it is lawful not to pay for the time. The Supreme Court will soon decide whether efforts to halt merchandise theft will become legalized wage theft.

The Economics Policy Institute reminds us that workers are deprived of approximately $50 billion in wages each year. Compare that to a total of $13.6 billion in stolen goods/cars/etc. Fifty billion could pay for over 1.2 million jobs that pay $20 an hour.

The city of Seattle, after their historic wage increase, is working to institute protections against rising wage theft. The mayor has proposed an Office of Labor Standards that would employ minimum-wage investigators to protect Seattle workers from the wage theft crisis. The Seattle P-I has the story. 

The epidemic of wage theft

There have been a  flood of recent stories about the epidemic of wage theft that is costing workers hundreds of millions of dollars a year. A shocking number of workers are wrongfully denied the wages they are owed for the work they perform. Unscrupulous employers pay less than to what was agreed, force workers to perform duties off the clock, misclassify worker employment status, retaliate against workers who report wage theft, cheat state and local governments out of required taxes and insurance contributions, and sometimes, withhold pay all together.

We believe taking effective steps to combat wage theft, misclassification, and retaliation is simply the right thing to do. It will also put millions of dollars back into our economy, improve the fiscal health of our local communities, and put proper wages into the pockets of the working families who earned them. Stay tuned for our legislative efforts in Olympia next year to level the playing field once and for all.

wage-theft-dollar-hook-300x221

Victory for fast-food workers in the fight against unfair labor practices

Fast-food workers in America received much-deserved justice with a recent National Labor Relations Board (NLRB) ruling that said McDonald’s could be held jointly liable for labor and wage violations by its franchise operators. The authorized complaint by the NLRB Office of the General Counsel comes after workers brought over 180 cases in the last 20 months against McDonald’s, accusing the company and its franchisees of unfair labor practices, including illegally firing, threatening or otherwise penalizing workers for their pro-labor activities.

As a result of their investigation, the NLRB found that because McDonald’s dictates the conditions of employment as a condition of their franchise agreements, and these conditions are at the root of the alleged unfair labor practices, that McDonald’s is a co-employer with the franchisees, which could hold the company responsible for actions taken at thousands of restaurants. Roughly 90% of the chain’s restaurants in the United States are franchise operations.

(AP Photo/file)

(AP Photo/file)

The cases filed with the NLRB grew out of the five one-day strikes demanding a $15 wage that fast-food workers conducted against McDonald’s and other fast-food restaurants that began in November 2012. Over 100 workers complained to the Board, saying that they had been fired, had their hours cut or were otherwise punished for the protests.

The problem of wage theft is exploding across the nation, and enforcement agencies and courts are seeing more and more evidence of this problem. The New York Times reported this weekend that the U.S. Labor Department’s wage and hour division has uncovered nearly $1 billion in illegally unpaid wages since 2010. David Weil, the division’s director, noted that the victimized workers were disproportionately immigrants and that some companies have retaliated against workers who refused to comply with the theft.”You can’t threaten people to lose their jobs because they are asserting rights that go back 75 years,” he said. 

California Labor Commissioner Julie Su noted that wage theft “has spread to multiple industries across many sectors. It’s affected not just minimum-wage workers, but also middle-class workers.” 

It’s clear that too many employers across the country are gaining an unfair competitive advantage against their competitors by cheating their workers out of earned wages. The economic incentives that allow this to happen need to change, so that instead of allowing profits from this unfair competition, we instead recognize and reward the value of hard work and fair competition. We must ensure that people are fully compensated for their work – a basic fairness and fundamental American value. 

Labor Rights Week

Trial lawyers have fought long and hard to protect the rights of workers. When a worker is injured, sickened, or killed on the job; when an employer withholds the rightfully earned wages of their employees; when workers are new to the country and need access to the justice system, trial lawyers fight to secure justice for them and their families. 

All workers deserve a fair day’s pay for a fair day’s work. 

 

Originally posted on the United States Department of Labor blog, “Work in Progress.”

We All Have Rights: A Safe and Healthy Workplace is One of Them!

by DR. DAVID MICHAELS

Your job should not cost you your life. Or a limb. Or your lungs.

If you work in the United States, you have the right to come home safe and healthy from your job at the end of every shift. At OSHA, our job is to help make sure that employers protect every worker from being hurt, sickened or killed on the job.

As a worker in the United States, you have the right to:

  • Raise workplace safety and health concerns or report workplace injuries and illnesses to your employer without being punished – fired, demoted or retaliated against in any other way.
  • File a complaint with OSHA if you think your workplace is dangerous. We will keep it confidential.
  • See records of injuries and illnesses that have occurred in your workplace.

This Labor Rights Week, Aug. 25-29, we want to make sure that all workers understand that we all have these rights, and we are here to make sure those rights are respected. To ensure that all workers have a fair shot at making a living and providing for their families, OSHA enforces the law that requires employers to maintain a safe workplace, free of recognized hazards and provide workers with the training, tools and equipment they need to do their jobs safely.

Depending on your job, this can mean protection from falls, proper clothing and medical exams if you work with asbestos or lead, hearing protection if you are exposed to loud noise, or special training if you work around hazardous chemicals. Training must be provided in a language and vocabulary that you can understand.

Recognizing the particularly vulnerable status of certain worker groups, OSHA, in partnership with the National Institute for Occupational Safety and Health, released recommended practicesearlier this week for staffing agencies and host employers to better protect temporary workers from hazards on the job.

In addition to the work we do every day, we will be joining with businesses, labor groups, universities and community organizations to host outreach events this week in recognition of Labor Rights Week. We’re also establishing or strengthening partnerships with foreign embassies and consulates from California to Texas to Massachusetts on protecting the rights of workers.

To learn more about events in your area, visit our Labor Rights Week events page. For more information about workers’ rights to a safe and healthy workplace, visit www.osha.gov/workers. To report a workplace safety or health hazard or learn more, call 1-800-321-OSHA (6742).