Tag Archives: unions

Cutting Corners Costs Lives: Non-Union Work Sites Twice As Dangerous As Union Sites

This large inflatable rat is a common sight at protests of non-union worksites in New York City.

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

As an attorney who practices in the metropolitan area, I often find myself traveling into New York City. I am amazed at the amount of construction that I see; the cityscape is changing and evolving rapidly. This construction boom means more business, a steady paycheck for workers, and more money for the city and state. Unfortunately, with the rise in construction also comes a rise in safety violations, injuries, and fatalities.

The New York Committee for Occupational Safety and Health (NYCOSH) recently issued a report called Deadly Skyline regarding construction fatalities in New York State. A summary of their findings notes that from 2006 through the end of 2015, 464 construction workers died while on the job, with falls as the leading cause of death. When a fatality occurred, safety violations were inherent in more than 90 percent of the sites inspected by the Occupational Safety and Health Administration (OSHA). The report pointed out that non-union work sites had twice the safety violations of union sites, and in 2015, 74 percent of the fatalities occurred on non-union projects with the majority of the fatalities involving Latinos.       

It is painfully obvious that shortcuts and cost-saving measures result in injury and death. Many employers use misclassification as a means to save money. Misclassification occurs when an employee is labeled as an “independent contractor” so that a business owner doesn’t need to pay Workers’ Compensation insurance, Social Security, Medicare, or unemployment taxes. Some even resort to paying employees off the books as well in an effort to save money. This may not seem troublesome until you realize that this is a one-sided deal that really only benefits the employer. According to the NYCOSH report, misclassification of workers allows an employer to skirt the safe workplace requirement as OSHA does not cover independent contractors.

Employers must provide Workers’ Compensation insurance for their employees, and typically must notify their Workers’ Comp carrier as to the number of employees they have and the type of work they do. A risk analysis is performed and then employers are assigned a premium to pay in order to cover their workers in case of injuries. If injuries occur, premiums may be increased accordingly. Obviously employers in high-risk businesses must pay more for their premiums than those with employees involved in low-risk jobs. As injuries on misclassified workers do not add to an employer’s bottom line, there is less incentive to provide safety measures if it cuts into profits.

To make construction sites safe, NYCOSH recommends adequate education and training as well as legislation to punish those whose willful negligence causes a death. They also recommend passage of the NYS Elevator Safety bill that requires the licensing of persons engaged in the design, construction, operation, inspection, maintenance, alteration, and repair of elevators. It would also preserve Section 240 of the New York Labor Law, commonly referred to as the “scaffold law,” which governs the use of scaffolding and other devices for the use of employees. Weakening the Scaffold Law would shift safety responsibility from owners and general contractors who control the site, to workers who do not control the site and are in a subordinate position.

It is a true tragedy when someone is maimed or killed in an accident that could have been prevented. Not every employer engages in these tactics, and most workplaces are generally safe spaces for workers. However, even one death is too many. 

 

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Wage Disparity and Workers’ Compensation

When I began representing injured workers at a labor law firm in the 1970s, over one-third of the workforce was unionized. Almost all the workers I represented earned the maximum amount allowable to trigger the maximum workers’ compensation benefit in the event they missed work due to a work injury. Today with Union membership in the United States down to 6.6% of the workforce (about the same rate as at the turn of the 20th Century, few of the workers I represent are “maximum” earners, triggering maximum benefits under workers’ compensation. In fact, many of the workers I represent earn less than $10 per hour, which means their family income falls beneath the national poverty line.

Statistics about economic inequality are staggering. The richest 1% of the nation controls 40% of the wealth and earns 20% of the national income – proportions very similar to those in the early 20th Century (and up from about 25% and 9% in the 1970s when I started representing injured workers). Two recent books attempt to explain what, if anything, can be done to revive unionism. Historian Steve Frazer’s Age of Acquiescence looks at the long sweep of work in the United States. Frazer thinks the labor question is the key to confronting the economic gap and all its political and cultural consequences.  

The second book is by a lawyer who represented workers in Chicago, Thomas Geoghegan. Only One Thing Can Save Us suggests we have to return to the early labor union courage to challenge the inequities that surround workers – a spirit that is now largely evaporated. We have abandoned many of the crucial goals of the Progressive years – the rights to minimum wage, a limit on hours, unemployment insurance, and other benefits such as health insurance, pensions, paid vacations – that were won only through collective bargaining. 

The decline in unionism has hurt all American workers. About one in ten American workers is now self-employed (the most rapidly growing group in this category are maids and housekeepers, carpenters, landscapers, and hairdressers). Part time workers make up 17% of the labor force.  Additionally, workers hired as Independent Contractors (like many at FedEx, for example) are not eligible for unemployment compensation, do not have the right to organize a union, are not guaranteed overtime pay or the minimum wage, and lack access to the employment protections afforded by the Civil Rights Act. Moreover, the employers do not have to contribute to Social Security. We see this abuse often by employers characterizing workers as Independent Contractors who should be employees for whom the workers’ compensation, unemployment compensation premiums and payroll taxes is paid.

Times have changed and certainly not for the better.

College Athletes Unionized? They Must Be Employees First

Northwestern University Quarterback Kain Colter

Northwestern University quarterback Kain Colter announced plans to form the first labor union for college athletes. The College Athletes Players Association, in concert with the Steel Workers (who have agreed to pay the legal bills for the effort) will try to unionize college athletes. The big question: whether college athletes can be considered employees.  If certified by the National Labor Relations Board, the union will be called the College Athletes Players Association. In order for the association to be recognized as a union, the players have to prove they are employees and that the NCAA or each school is its employer. Most experts indicate this is an uphill legal fight.

Worker’s compensation lawyers see everything through the prism of worker’s compensation law. Most State statutory schemes presume that a worker is an employee, except where the employee may be considered a volunteer or an independent contractor. Where the top five power conferences ACC, SEC, Pac-12, Big Ten, Big Twelve generate nearly $10 billion annually, it is hard to claim players are “volunteers” in this system.

Some college athletes who have been seriously injured have filed worker’s compensation claims. Those claims have all been dismissed on the notion that the injured player was not a “employee” and thus not entitled to benefits. (see our prior blog posts on this issue

Athletes who successfully use their college careers as a platform for a later career in professional sports are not the norm. In many situations, college players are injured, precluding any further athletic career for pay. There is no compensation awarded for this lost potential career. Furthermore, if an athlete is injured while on campus, once they leave school or graduate, the school generally does not covered future medical costs for that injury.  

Worker’s compensation lawyers will be monitoring the case with interest.