TOV Injury and Safety Blog

Fall from ladder evokes "common work area" doctrine; employee of sub-contractor can sue

David Slater was injured in a fall from a 32 foot ladder, as he attempted to unchain it.  The General Contractor had suggested that he unchain the ladder, left by another subcontractor, despite Slater's lack of experience on roofs, ladders or heights and his lack of fall protection.  His claim was initally dismissed by the trial court, but reinstatted by the Court of Appeals.  The higher court ruled that these circumstances brought into play the "common work area" doctrine, under which the owner or general contractor must assume a legal duty to maintain safety in certain construction areas.

State attorney generals complain about FedEx treatment of employees

In a previous blog, we reported on the FedEx policy of claiming that its employees are independent contractors, and then abusing them by forcing them to buy their delivery trucks, failing to pay for proper insurances and generally taking advantage of them in an illegal manner.  On June 25 the Attorney Generals of Montana and seven other states demanded that Fed Ex Ground properly classify their drivers and manage employment issues in accordance with employee protection laws. 

Law firm not responsible for employee's fraudulent notarization of signature.

Susan Grossman sued Liss and Associates, her ex-husband's attorneys, after an employee allegedly notarized her forged signature on an assignment of mortgage.  The case has made its way to the appellate court twice previously, and the court had overturned both a summary disposition and a directed verdict that had been granted to the defendant law firm.  Previously the court had held that whether the employee was acting "within the scope of her employment" at the time of the allegedly illegal act was a question of fact for the jury.  On this appeal, the plaintiff was attempting to overturn a jury verdict for the defense, based on what she claimed were unfair instructions from the trial judge.

Workers compensation "exclusive remedy" provision upheld

In Stallings v. General Motors Corp., the Court of Appeals again upheld the dismissal of an injury action against the injured employee's employer.  As has been explained in previous web log entries, adoption of the workers compensation scheme resulted in partial immunity for employers' negligence.  People hurt on the job are guaranteed certain benefits including medical expenses and a fraction of their normal wage, but cannot secure complete recovery from their employer, even if the employer is guilty of negligence or gross negligence.

Court upholds employer's mandatory arbitration contract

The Sixth Circuit issued a decision on May 19, upholding Varsity Ford Management Services, LLC's employment contract that limited employees' ability to sue for age, disability or race discrimination.  Omari Mazera had worked for Varsity in Ann Arbor for seven years before what he alleged was an unlawful termination.  A naturalized citizen from Kenya, Mazera claimed his firing was illegal discrimination and that the 2004 employment contract imposed by the employer could not precipitously mandate arbitration of employees' civil rights.  The contract required arbitration of all disputes and was imposed as a "term and condition of employment."

Eastern District allows retaliatory discharge claim to go to trial

Judge Lawson of the Eastern District reconsidered his earlier dismissal of a retaliatory discharge claim and determined that Lynn Morrison's case against B. Braun Medical, Inc., should be decided by a jury.  The Judge pointed to a recently-decided Sixth Circuit opinion which comports with the Michigan law on retaliatory discharge as the foundation for his change of opinion, along with additional facts supplied by the employee.

The employee allegedly reported anti-kickback law violations and refused to illegally promote medical products.  The judge found that within three months she was placed on a performance improvement plan (PIP), and that she was discharged 8 months later.  Her claim of disparate treatment (others with lower sales numbers were not subjected to a PIP) and heightened scrutiny in close proximity to the exercise of protected activity, raised a question of fact for the jury to decide.

Bus driver who made gun threat cannot sue after termination

A Madison Heights school bus driver was involved in a "contentious" running dispute with another driver over scheduling.  At a meeting set by administrators and union reps to attempt to resolve the dispute, the bus driver packed her things and left prematurely, stating she'd take the matter up with the Superintendent and "...bring her gun."  She met with authorities investigating the matter several times, but on advice of counsel she refused to discuss the matter.  She was then terminated and sued the  school and the union for inadequate representation.  The trial court and Court of Appeals dismissed her claim.  Some careless statements are just too inflammatory:  making jokes about a gun at school or at work has become sort of like making bomb jokes in an airport. 

Electrician cannot sue employer for intentionally-caused injury

The Michigan Legislature adopted a statute that defines the rare situations where an employee can sue his employer for injuries suffered at work.  Normally, the employee is limited to the benefits provided by the workers compensation scheme (that is statutory medical  or funeral/burial payments, partial wage loss and very limited attendant care).  The legislature did hold open the potential for an employee to sue his employer for injuries if they are the result of intentional misconduct.  It also defined "intentional" misconduct in a manner that allows a jury to infer the employer's intent.  That statutory definition was at the heart of a disagreement by the Court of Appeals judges who decided the Allard v. Detroit Edison case.

Nurse practitioners, though demonstrating likely discrimination, cannot pursue class action

In Halabicky, et al. v. University of Michigan, a group of female nurse practitioners  (NPs) sought class action status for their claim that they were victims of gender discrimination under the Elliott-Larson Civil Rights Act.  The nurse practitioners alleged that they performed essentially the same job as (predominantly male) physician assistants (PAs), but for substantially less pay.  The federal trial judge felt compelled to deny them class action status, even though he felt that they had presented facts that strongly implied discrimination. 

The judge noted that while the nurse practitioners were a bargaining unit within the University system and constituted a reasonable "class" in terms of homogenous treatment, they were being compared with physician assistants who were retained, compensated and "defined" on an individual basis within various departments of the University system.  Given that NPs and PAs are "entirely different medical certifications,"  and that PA jobs are defined and compensated on a departmental basis, the NPs could not prove discrimination affected their entire class in a similar manner:  each NP would have to prove discrimination separately by a comparison with PAs within her department.

The Court noted that NPs were compensated on a bargained step basis, with the 2008 steps ranging from $72,000.00 to $88,000.00.  They remain eligible for overtime pay, with these figures translating into pay for three of the Plaintiffs in the range of $106,000.00 to $116,000.00.  PAs, on the other hand, are compensated in accordance with various Department's budgets and needs on a market basis.  In non-Human Resource terms, this translates to "lucrative practices pay PAs better than less lucrative Departments," with the 2007 base salary figures ranging from $67,000.00 to $130,000.00.

The Court acknowledged that each of the female NPs had identified male PAs within their respective departments, who earned signicantly more than the NPs, although performing similar or identical duties.  The Court also confirmed that the NPs had presented expert analysis of salary figures that documented an annual salary difference of $8-10,000.00 between male and female workers performing similar duties, even when taking into account years of service, education and years in title.  The expert calculated that the odds of the gender difference identified occurring by chance alone was about "one in a million".

Despite these statistical differences, which he felt suggested evidence of gender discrimination, the federal judge concluded that the female plaintiffs could not meet the established standards for treating all University Health System NPs as a single class:  there were simply too many variables between the women's employment circumstances to qualify them all for unified analysis under class action court rules. 

Where can a fired employee file suit for discrimination?

Sometimes where a suit is filed is as important as the evidence presented.  A discrimination claim, for example, will find a more sympathetic ear among jurors who tend to sympathize with victims of discrimination.  And conventional wisdom says white jurors more easily identify with white litigants while black jurors more readily identify with black litigants.  Fifth Third Bank recognized that; and after two black Wayne County employees were fired and filed suit in Wayne County where they were fired, Fifth Third sought to move their cases from Wayne County to Oakland County "where the decision to terminate the employees was made in the regional office."  The trial judges refused to transfer venue, but a two-judge majority of the Court of Appeals obliged on appeal.

Insurance agents held accountable for arranging illusory health coverage for employees

This week the Court of Appeals upheld a $1.2 million dollar verdict against Joseph Saigh and Lawrence Wells.  The jury had concluded that Saigh and Wells had allowed their employee to sell illusory coverage, provided by an unlicensed insurer, through negligent or intentional misrepresentations.  The Court rejected the defendants claims that they were not responsible for the representations made by their employee and also  rejected arguments that they owed no duty to the employer, even though they were retained expressly  because they claimed to be "specialists in health insurance coverage." 

The Court also allowed the corporate employer to collect exemplary damages from the defendants, based on the injury the company suffered to its good name.  The court noted that as a result of the illusory coverage the Defendants arranged and facilitated, the corporate employer suffered loss of good employees, hundreds of complaints from employees and health care providers, and a loss of reputation.  The case is Unibar Maintenance Services, Inc. v. Joseph Saigh and Lawrence Wells.

Ford Motor wins Family Medical Leave Act dispute

In Carter v. Ford Motor Company, the Sixth Circuit upheld Ford's discharge of the plaintiff, despite her claims of violation of the FMLA.  The Court noted that Carter had not complied with the company's procedural requirements for extending her leave, and that her attempt to return to work on a probationary basis "did not go smoothly". 

"Common work area" claim dismissed

Brent Curry, a licensed electrician, was injured when he stepped into a gap between the on-site construction temporary trailer and the metal stairs providing access to it.  The stairs had never been affixed to the trailer, but no one knew when it separated sufficiently from the trailer to create a gap wide enough to constitute a hazard to workers.  On that basis, the courts dismissed Curry's injury claim against the contractor.

Union workers' anti-discrimination rights can be bargained away

In a reversal of public policy, the U.S. Supreme Court decided last week that a union majority, or its executive council, can bargain away individual rights relating to discrimination.  Historically, the Supreme Court had rejected this kind of argument, noting that a majority within the union may be willing to trade individual rights--or allow discrimination against an insular minority--if it can secure benefits for the broader membership.  In last week's 5-4 decision, written by Justice Thomas, the majority overturned the 1974 Alexander v. Gardner-Denver Company decision and allowed the union to bargain away federal age-discrimination protections.  The Union had acquiesced in employer demands that age discrimination claims be resolved only through arbitration and that normal civil procedure rights (including the right to a jury trial) be relinquished.

Gender discrimination claim dismissed, based on harsh policy allowing discharge for first violation

Sharon Sybrandt was hired by Home Depot in 1991 and eventually promoted to Assistant Manager, before being fired in 2002.  She had violated a Home Depot policy which prohibited employees from using their own security code to effect  certain personal transactions:  she had stood over another employee's shoulder while the employee processed a return under Sybrandt's code.  The Home Depot investigator recommended she be terminated for the breach, which the personnel policy informed employees could result in dismissal, and she was fired.  She sued claiming the alleged policy violation was a subterfuge for gender discrimination.

Post-Taylor court rejects third-party "fault" without duty

Part of the history of tort "reform" legislation was a movement to eliminate joint and several [or "deep-pocket"] liability.  The Michigan Legislature adopted a statute that achieved that end by allowing victims to recover from a particular defendant only those damages attributable to that defendant's fault.   (In this way, the innocent victim bears the weight of the "third-party's" uninsured or uncollectible share of fault.  The reform legislation also allowed the defendant in a lawsuit to blame others who are "at fault" in causing the victim's injuries, without actually suing them.  Insurers had argued that they should be able to place blame on third parties, and avoid responsibility for their "share" of responsibility, even if the third party wasn't included in the lawsuit.  They went an additional step, next, and argued that they should be able to deduct damages for the "fault" of a third-party who owed no duty to the victim.

Wage and Hour Division is failing workers

Congressional auditors concluded this month that the Wage and Hour Division of the Department of Labor had not fulfilled its legal duties to workers during the Bush years.    The nonpartison Governmental Accountability Office concluded that the Division had mishandled 9 of 10 claims  brought by a team of undercover investigators. The examples it cited were revolting  proof of lack of accountability to any reasonable person. 

Government joins in gender discrimination claims against Wal-Mart

The resignation of one of President Bush's appointments to the Equal Employment Opportunity Commission resulted in a reversal of the federal government's position, and this month the EEOC joined with women suing Wal Mart for discrimination.  The EEOC filed an amicus curiae brief in the 9th Circuit, supporting the womens' Title VII claim that Wal Mart uniformly paid women less than men across the country.

Judgment arising out of retaliatory firing under workers compensation act is upheld.

Patrick Shelson injured a hand at work, and his doctor did not release him to return to work as quickly as his employer demanded.  When the employer threatened Shelson with "consequences" if he didn't return to work early, Shelson told co-workers he'd sue if the boss followed through on his threat.  The boss then fired Shelson for threatening suit.  Shelson obtained a judgment against his employer, Schmidt Industries, Inc., which was upheld in the Court of Appeals.  One of the boss's complaints was that his earlier admission of a willingness to commit perjury was admitted into evidence.  Sounds like this guy did Shelson a favor by easing him out of his employment with such a jerk.

"Hostile work environment" claims against Costco are upheld for nominal damages

Six black employees sued Costco alleging a hostile work environment existed in the warehouse where they worked.  After a mistrial in their first trial, three of the six employees secured unanimous verdicts, although none prevailed on their illegal termination claims.  All parties appealed, and the Sixth Circuit threw out the award of damages for emotional distress, holding that such damages are not properly recoverable under the law.  The dissent strongly disagreed with the majority's conclusions and that these conclusions were dictated by existing precedent.

The case is Erica Betts, et al. v. Costco Wholesale Corporation.

Denial of ERISA long-term disability benefits was arbitrary and capricious

In DeLisle v. Sun Life Assurance Co. of Canada, the Sixth Circuit agreed with the Eastern District of Michigan trial judge in assessing the propriety of Sun Life's denial of long-term disability (LTD) payments to the Plaintiff.  The court concluded that her denial was not the result of a "deliberate and principled reasoning process".

Laid-off Sheriff's Department employee did not prove gender discrimination

In Syrowatka v. Washtenaw County, the Court of Appeals held that the plaintiff failed to prove that her lay-off was gender discrimination.  The court held that the plaintiff's one complaint about pay disparity two years earlier was not adequate to prove a retaliatory nexus. 

The appellate panel also held that evidence of discriminatory statements by the Sheriff and his alleged manipulation to eliminate her position were not adequate to establish illegal discrimination.  The Court pointed to an alleged workforce reduction caused by economic conditions, and held that the lapse of ten months between reassigning her and eliminating the new position rendered her discharge claim "speculative".  If the Sheriff was discriminating, he apparently covered his tracks adequately.

College employee fired when her suspicion of employer's action is unjustified

Talisha Winton believed that her boss was embezzling from Wayne State University.  She "blew the whistle", resulting in a police investigation, and ultimately the exoneration of her supervisor.  She apparently did not accept this outcome and was fired several months later for "continuing to spread rumors and false statements among the faculty."  The Court of Appeals noted that she was not disciplined for her original report, and ruled that her termination several months later, after she refused to accept the outcome of the resulting investigation, was not protected under the Whistleblowers' Protection Act.  You know the saying that can be adapted to this situation:  don't shoot at the boss unless you know you're aim is good.

Union member's employment case dismissed for failure to exhaust administrative remedies

Dale Abronowitz sued his employer, the City of Lansing, and his Union, UAW Local 2256, alleged violation of his rights under the collective bargaining agreement between the Union and the City.  The Court of Appeals  upheld the dismissal of his case because he had not follow-through on the administrative remedies available to him, and also had not presented evidence of pervasive hostility to his rights.  To justify side-stepping the administrative process, Abronowitz was required to prove that hostility to his rights permeated the entire internal appellate process.

Sixth Circuit recognizes that members of protected class, and their associates, are protected by Title VII

In Barrett v. Whirlpool, the Sixth Circuit held that Title VII protects not only the members of a class who had previously been discriminated against, but also the close associates of members of the class.  The Plaintiffs were caucasian employees of Whirlpool Corporation who alleged that they had suffered discrimination, retaliation or a hostile work environment as a result of their association with, and advocacy for, African-Americans.  The trial court had dismissed their claims, holding that since they were not members of the protected class, Title VII did not apply to them.  The Sixth Circuit held that federal law barred discrimination against these non-members of the protected class, as well as the members, and returned the case to the trial court to allow the plaintiffs an opportunity to prove their claims.

Wal-Mart admits illegal conduct once again?

Is it just us, or is there a multi-million dollar, enormous settlement that suggests an admission of wrong-doing by Wal-Mart every week?  This week, Bloomberg reported that Wal-Mart paid $17.5 million dollars [a small case by Wal-Mart standards] to settle claims that it discriminated against African-Americans in recruiting and hiring truck drivers. 

Belated complaint doesn't qualify as "whistle-blowing"

The Court of Appeals upheld the dismissal of Jennifer Gale's whistleblower complaint against her employer, MSU, despite her claim that she was discharged in retaliation for complaining about a clearly "sexual" condom story related to her by a co-worker.  The Court noted that Ms. Gale was a probationary employee and that she did not voice her complaint when the incident occurred, but rather brought it up after her immediate supervisor had already made the decision to terminate her employment due to friction with co-workers, and after the supervisor had begun compiling a list of justifications for not making her employment permanent.

Age discrimination claim sent to jury

The Sixth Circuit recently held that Jarrett Hamilton's age discrimination claim against General Electric should go to the jury for decision.  Judge Griffin dissenting, the panel reversed the trial court and reinstated the case to give Hamilton his "day in court".   Hamilton had worked for GE since 1974 with only three or four minor disciplinary issues prior to 2004.  He claimed that from 2004 on, however, the plant manager mounted a crusade to push him out, culminated in his firing in 2005 over a disputed lunch room incident.  The majority of the Court concluded that applying the proper legal standard, Hamilton's claim was viable if the jury accepted his version of the facts, and therefore the case should be decided by the jury and not by a judge.

Aunt-in-law gets you fired? You can sue her.

Renee Rudover discovered the only thing worse than a meddling mother-in-law is a meddling aunt-in-law.  Her aunt by marriage was a patient at the Neurosurgery Group, P.C., where Renee worked, and went to her doctor with complaints about Renee.  The doctor, a paragon of intestinal fortitude, apparently, asked the aunt to write down her complaints and then used the list to fire Renee for HIPAA violations, excessive cell phone use, misuse of lunch breaks (would that be eating breakfast instead of lunch, or what?   Leaving the premises?  Eating twinkies?) and "manipulating staff" to maintain her hours.  The Appellate Court reinstated Renee's claim against her husband's aunt for interfering with a business relationship, pointing out that the trial court had inappropriately resolved the credibility issue regarding the woman's complaints against Renee.

Fired employee can't sue community mental health employer

Nancy Bricker was considered partially responsible for a scalding hot shower that caused the death of a group home patient for the developmentally disabled.  Her employer, AuSable Valley CMH, fired her and a supervisor.  She filed suit against the employer and several individuals, claiming wrongful discharge and various theories of breach of public policy or intentional wrongdoing. 

Hair dresser's non-compete clause enforced

In Lockworks, Ltd. v. Keegan, the Court of Appeals reversed the lower court and reinstated a non-compete agreement which a stylist admitted violating. Keegan had agreed not to compete with her employer for one year, within a five-mile radius, however, after quitting with Lockworks, she started cutting hair 4.16 miles away.  The Court decided that she cut things too close.

Ledbetter bill passed by Congress

On January 27, Congress approved passage of a civil rights bill that will overturn the much-criticized 2008 decision of the U.S. Supreme Court in Ledbetter v. Goodyear.  That decision eliminated many discrimination claims before the victim was aware even became aware that an illegal action had been perpetrated.  Near the end of 2008, Congress passed another act, repudiating decisions by the Supreme Court which had greatly limited the breadth of the Americans with Disabilities Act.

Manager can be fired for failing to report intimate relationship with employee he supervised

This month, the Appellate Court upheld Home Depot's discharge of Chris Goodrich, a managerial employee, for failing to report that he had violated the employer's rule regarding reporting potential romantic relationships.  His situation is one textbook example of why the policy is not an infringement on employees' privacy. 

After Goodrich became romantically interested in a married employee under his supervision and went to her home to explore that interest, her husband showed up at the store to confront him.  At that point store managers became aware of the "potential" relationship, and confronted Goodrich, who indicated an intent to seek a PPO to deter the husband from contact.  Goodrich acknowledged the "potential" relationship and the employer terminated his employment the following week.  The Court held that Home Depot's actions did not violate the Bullard-Plawecki Employee Right to Know Act, because Goodrich's actions involved or implicated his employment duties as a supervisory employee.

Non-compete agreement is upheld

In Edwards Publications, Inc. v. Tracy Kasdorf, the Court of Appeals upheld the former employer's efforts to enforce a non-compete agreement against a former employee who was lured away by a direct competitor.  When reasonably limited in scope and duration, such agreements are enforceable in Michigan, particularly where the effect of violation, as here, is direct injury to the former employer's business through use of employment-acquired information and client contacts.

Woman's retaliation claim dismissed

A disappointing decision by the Court of Appeals this week dismissed the retaliatory firing claim of Martha Gullett against her employer, Autoform, Inc.  Ms. Gullett injured her hand while working as a press operator in 2002.  She returned to work after several months and in an attempt to accommodate her injury, she was assigned a job as a "checker" performing repetitive tasks. Over the following three years, she was forced to take additional time off with pain in the injured hand and ultimately her physician restricted her from working as a "checker" due to her "repetitive" use of the injured hand.  Her employer then discharged her upon the exhaustion of her rights under the Family Medical Leave Act. 

Worker who cooperates with internal investigation can sue over retaliation

The U.S. Supreme Court recently over-turned the Sixth Circuit Court of Appeals, holding that a school system employee could pursue her claim alleging a retaliatory firing.  The lower court had held that since she hadn't "blown the whistle" herself, Vicky Crawford could not avail herself of anti-retaliation provisions of Title VII.  She had cooperated with an internal investigation into improper behavior by the school district's employee relations director, only to find herself fired several months later.  Even the conservative Supreme Court found this holding unduly restrictive and contrary to the public policy intended by Congress, voting 9-0 to overturn the Sixth Circuit.

Court reinstates employee who was fired after expressing safety concern

Leoni Township in Jackson County fired one of its employees, Ben Brzezinski, after he expressed concerns about working in an unreinforced excavation and refused to enter a six foot deep trench.   Brzezinski brought an administrative action, claiming an illegal retaliatory firing, and he was supported by MiOSHA.   His supervisors claimed the firing was for subordination, and denied a retaliatory motive or that Brzezinski had expressed safety concerns.  The court noted, however, that the supervisors' testimony was inconsistent.

Whistleblower defense is rejected by the Court of Appeals

When the Club of Kalamazoo and two individual managers attempted to require health club employees to install insulation in the walls during renovations and did not provide proper safety equipment, four workers objected.  When their objections were ignored, two of the workers reported the illegal demand to MiOSHA.  In response, their employer-Defendants reduced their pay to cover the cost of third-party installation and ultimately fired all four employees.  They filed suit, alleging a violation of the Michigan Whistleblowers Act.

Sex- and race-based harrassment and retaliation suit dismissed

The Sixth Circuit Court of Appeals summarily dismissed a claim brought by Christine Ladd against the Grand Trunk Western Railroad, claiming that Ladd had not met her burden of proof.  Ladd was a six-year employee of Grand Trunk who had been promoted twice by the company.  She was fired after she accused a supervisory employee of calling her a "black bitch" and, after her complaint, of injuring her by moving a truck without warning her.  Although their claims were admittedly contradictory and inconsistent, several co-workers to some extent collaborated the supervisor's claim that Ladd wasn't in the truck bed when he moved it, and on that basis, Ladd was fired for making a "false report". 

McDonalds not responsible when employee beats disabled child

The Court of Appeals recently held that a local McDonalds owed no responsibility to the mentally challenged victim-customer who was beaten by an employee.  The victim was allegedly attacked verbally by the employee.  He then reported the incident, including the employee's threat to "kick his ass", to the manager on duty.  The manager left the employee at his work station after the employee claimed to have calmed down, however, moments later the employee attacked the customer, he had to be "pulled off" the victim and police had to be called. 

Defendant cannot avail itself of unfair arbitration provision without evidence of victim's intent

One of the Federal District Judges serving in the Eastern District of Michigan had occasion this month to address a controversy regarding an alleged binding arbitration agreement.  In Estate of Vunies High v. Capital Senior Living, Judge David Lawson wrote an excellent opinion addressing the issues involved in a contract of adhesion attempting to deny residents of an assisted living facility of their right to a jury trial.

New regulations governing Family Medical Leave Act

Effective this month, January 2009, new regulations enacted last fall become effective, defining some of the parameters of the Family Medical Leave Act.  Since the regulations were adopted at the end of the Bush Administration, you can count on the fact that they do not favor employees.  Most of the changes are procedural and many deal with definitions.   They are available on line at www.dol.gov/esa/whd/fmla.

Whistleblower claim will go to trial

The Court of Appeals reinstated a whistleblower case brought by Belinda Glover and Angela Speaks against the Pontiac Housing Commission.  The lower court had dismissed the case in reliance on the Defendant's claim that the termination of the Plaintiffs' employment was a result of budgetary considerations:  the Court of Appeals reversed, noting that the Plaintiffs had present adequate evidence of a pretextual firing to warrant a jury trial on the issue.

One in five nursing homes receives government's lowest evaluation and rating

The Associated Press reported on December 18, 2008, that fully 22 percent of all nursing homes flunked their government evaluations in 2008, receiving only "one star" on a "five star" rating system.    Nursing homes provide care to 1.5 million patients, and the data used in the rating was derived from Medicare and Medicaid records.   Even this data is potentially skewed by reliance upon "self-reporting" of staffing levels, for example. 

By Medicare's rating system, "one star" equals an evaluation of "much below average".   In several southern states, more than thirty percent of homes were rated "much below average".   The ratings are available on the web at Medicare's Nursing Home Compare Web site:  http://Medicare.gov/NHcompare.

Wal Mart settles additional class action lawsuits brought by mis-treated employees

Wal-Mart has a tortured history of abusing rules governing employee rights and regulations and working conditions.  In the latest chapter in this sordid history, the company announced on Christmas Eve, 2008, that it was paying as much as 640 million dollars to settle additional claims relating to worker wage abuse.  The 63 class actions settled by Wal Mart alleged that thousands of employees were illegally required to work "off the clock" or through breaks.  A similar claim in California, which resulted in a 2005 verdict against Wal Mart in the amount of 172 million dollars, is still being appealed by Wal Mart.

A Wal Mart spokesman claimed that the "allegations are not representative of the company we are today".  I guess that should make us all feel better?

Long haul trucker is engaged in the business even when searching for lodging between contracts

In Auto-Owners v. Redland Insurance Company, the Sixth Circuit was faced with a dispute between two carriers with regard to which carrier had priority in responding to a liability claim.  An employee of their insured, David Gale, was operating a semi-tractor trailer in southwest Michigan when he fell asleep and killed another motorist.  Gale had completed a delivery in Grand Rapids, was awaiting his next assignment, and had telephoned his employer to indicate he was looking for a location east of Chicago to bed down for the night.  Under the terms of its coverage, Redland owed liability coverage to the victim only if Gale was not "in the business" of trucking when he fell asleep and crossed the centerline. 

 AutoOwners took the position that when Gale was between assignments and searching for a place to sleep, he was not "in the business" of trucking.  AutoOwners' argument finds some support in decisions like the Michigan holding  several months ago involving a traveling businessman who became paralyzed in a car accident on his way to a restaurant for dinner.  The victim in that case was staying in a motel while out of town on business when he was hurt.  The judicial activists who protect insurers in Michigan held that he was not engaged in his employment (and not eligible for workers compensation) when he got hurt.

Frankly, we think the Sixth Circuit got it right in Gale's case, and both men were "engaged in their business" at the time of the motor vehicle collisions.  It is enlightening to note, however, that the effect in each case was to diminish the insurance coverage or obligation owed to the injured party.

Appellate Court rejects injured worker's claim he was "temporarily unemployed"

In Stanny v. Progressive Michigan Insurance, a panel of the Court of Appeals rejected the injured plaintiff's claim for wage loss benefits under MCL 3107a.  The latter provision allows a person injured in a car wreck to collect three years of lost wages if he or she was laid off or temporarily out of the job market at the time of the car accident.  In Stanny's case, the Court was compelled to exclude him from this benefit because he had left his employment by choice in 1997 and "the totality of circumstances" surrounding his claim "provided no evidence that he would have returned to employment but for the accident".  In a footnote, the judges explained that they need not address what level of evidence would be necessary to demonstrate a probability of returning to work, since the Plaintiff produced no evidence of any probability.

Wal-Mart pays 54 million dollars to settle working hours lawsuit

On December 8, WalMart settled a Minnesota class-action suit by paying workers a total of 54 million dollars.  The suit alleged that WalMart cut workers' break time and commited other violations of Minnesota's wage and hour laws.  It included 100,000 current and former hourly employees who worked for WalMart in Minnesota between 1998 and 2008.  This summer a judge held that the company had violated Minnesota law by willfully allowing managers to require employees to work "off the clock". 

Court upholds award of unpaid commissions and double-damage penalty

The Court of Appeals recently upheld an arbitration and Circuit Court holding that punished an employer for wrongfully withholding earned commissions from a fired employee.  The case is Versatube Stamping Corporation v. Louis G. Conti.  Pursuant to the Sales Representative Commission Act, MCL 600.2961, the Court awarded Conti both his unpaid commissions and double-damages.  Versatube had argued that Conti did not meet the statutory definition of a "sales representative" despite the fact that by contract, he was to be paid a commission for "new work".  The Court also refused to reverse the award based on Versatube's complaint that Conti had  discussed child-raising during a brief "ex parte" conversation with the arbitrator during a bathroom break.

"Independent" roofer's right to collect workers compensation

An insurer recently lost another round in the ubiquitous battle over whether an employee can be defined as an independent contractor and denied the right to collect workers compensation.  Many employers, some as large as FedEx, attempt to treat their employees as independent contractors in an effort to minimize employee benefits and expenses.