Oklahoma recently faced a proposal in legislative session that would have allowed employers to “opt out” of the State’s mandatory worker’s compensation system. The bill ultimately died but it was closely monitored by the business community. Similar bills may soon surface in several other states including Colorado, Kansas, Louisiana, and Tennessee.
Wisconsin’s initial efforts in workers’ compensation led the nation.
With several states proposing to “opt out” of worker’s compensation, it is important to revisit, after 100 years, why Wisconsin “opted in” leading the way for the other 50 states in worker’s compensation. The next several blog entries will tell that story.
Part I. Workers Denied Recovery
Wisconsin’s initial efforts in workers’ compensation led the nation. In 1911, Wisconsin became the first state in the nation to place a broad, constitutionally valid workers’ compensation system into operation.
Prior to 1911, Wisconsin workers who were injured on the job had to overcome three common law obstacles in order to recover from their employer. Under the contributory negligence doctrine, a worker could not recover from the employer if the worker had been negligent in any way and that negligence had contributed to the accident regardless of how negligent the employer may have been.
Under the doctrine of assumption of risk, if a worker knew or should have known of the danger inherent in the task at issue before undertaking it, the employer was not liable for an accident arising from the task even if the employee was not negligent.
Under the fellow servant rule, employers could not be held liable for accidents caused by fellow employees (i.e., co-workers) of the victim.
The combined effect of these common law defenses served to deny workers adequate remedies for their injuries.
Please visit our blog next week for part 2 of our series on states opting out of workers’ compensation.