Worker misclassification is by no means a new problem. However, it is one that has been getting more attention lately in North Carolina. Investigative journalism over the last two years has revealed the trouble is rampant in the Tarheel State, with employers labeling workers as independent contractors – rather than employees – in an effort to skirt their responsibilities. In particular, they want to avoid paying for government-required protections, such as workers’ compensation, overtime, and family and medical leave.


Recently, officials at the North Carolina Industrial Commission signed an agreement with the U.S. Department of Labor to coordinate resources in order to dig up and address instances of worker misclassification in this state.

This was the culmination of a growing effort. In March 2015, the U.S. Occupational Safety & Health Administration released a report, “Adding Inequality to Injury: The Cost of Failing to Protect Workers On the Job,” which explored Government Accountability Office data revealing more than 500,000 construction workers in North Carolina, Florida, and Texas were misclassified as independent contractors in 2009 – when their job duties entitled them to the benefits of employment. It was revealed that misclassification affected more than 35 percent of construction workers in North Carolina, and in that industry alone, it lost state and federal governments some $467 million in taxes. Of course, it’s not just in construction. The practice has become extremely pervasive across many industries, and it can be tough to root out.

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Federal inspectors with the Occupational Safety & Health Administration were recently reviewing safety at a Florida construction site when they looked up to see a familiar sight:  workers installing shingles on a roof with absolutely no fall protection. The sight was a familiar one because, according to OSHA, it was the eighth time in five years this roofing contractor had been cited for this offense. Specifically, the company is accused of failing to protect workers from falls by ensuring those working at six feet or higher have the benefit of some type of fall arrest or protection system. roofing contractors

U.S. safety standards outlined in 29 CFR 1926.501(b)(13) require that workers in these conditions must be given at least a personal fall arrest system, a safety net, or a guardrail.

On seven prior occasions since 2011, this company had been cited for repeated, willful, and serious violations for its failure to provide fall protection systems, as well as a lack of eye protection. Several workers were spotted working with powered nail guns with zero eye protection.

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Hospitals and other health care facilities that prioritize the development and implementation of safe patient handling policies will likely see a dip in work-related injuries. nurse

The study, published in the journal Occupational and Environmental Medicine, looked at 1,832 health care workers at two U.S. hospitals – one that had implemented a safer handling program and one that did not. At the facility that adopted the safer patient handling policy, the risk of shoulder and neck injuries among workers dropped by nearly a third in the 12 months after the policies were put in place. In that same time frame, the chances of exertion and lifting injuries fell by 27 percent. Additionally, the chances of inflammation and pain among workers dropped by 22 percent.

Meanwhile, the facility that did not adopt the patient safe handling policy did not see any marked change in the risk of injury over time.

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Investigators for the federal Occupational Safety and Health Administration have recommended thousands of dollars in fines against a company whose worker collapsed on the job and later died due to heat stress. When he was rushed to the hospital, the 47-year-old had a core body temperature of 107 degrees. The heat index that day in Jefferson City, MO was 90 degrees. sun

The worker had been installing roofing material at a high school construction project. It was only the laborer’s third day on the job, and allegedly, the company had not allowed enough time for him to become acclimated to toiling in the high temperatures.

That’s the case in a lot of work-related heat stress deaths. Workers are new to a position, and they aren’t physically accustomed to working long stretches outside in the sun and heat. Workers – especially those new to the job – need to be afforded frequent access to water, rest, and shade during hot summer months. While this may seem a low priority for workplaces as we head into the colder months, the fact is we should be talking about worker exposure risk year-round. Cold stress also is a serious problem for outdoor workers, and one for which companies must also plan.

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In North Carolina, people who immigrated illegally to the U.S. can still collect workers’ compensation, per the 1999 case of Rivera v. Trapp. The North Carolina Court of Appeals in that matter decided that immigrants without legal status in the U.S. are treated no differently in determining their right to workers’ compensation benefits. worker

A number of other cases have arisen in recent years that challenge an employer’s responsibility to continue the payment of benefits, particularly in the long term. Generally, courts have held that it is the employer’s burden to produce evidence showing there are suitable jobs the worker is capable of doing, “but for” his or her illegal immigration status (see Gayton v. Gage Carolina Metals, Inc., 149 N.C. App. 346, 349 (2002)).

North Carolina isn’t the only state to grapple with this issue. The Indiana Supreme Court is slated to hear oral arguments in the case of Escamilla v. Shiel Sexton Co., which asks about the types of relief to which undocumented workers are entitled – and for how long – when they are injured on the job.

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surgeryEmployees can expect that costs for medical expenses for work-related injuries will be covered by workers’ compensation benefits. These include subsequent injuries that occur as a direct result of the original injury. In these cases, however, one can expect the employer/insurer to require proof of causation. That means showing that the secondary injury was proximately caused by the work-related injury or illness.

This was the case in the matter of Hood v. State, ex rel. Department of Workforce Services, recently before the Wyoming Supreme Court.

The plaintiff was injured in December 2008 while working on an oil rig. Another worker knocked off a chunk of ice, and it fell, striking him on the head and injuring his neck. His doctor put him on light duty and recommended fusion surgery on his vertebrae.

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Workers who have been injured in multiple work-related incidents should have no problem obtaining benefits for treatment. However, the process can be complicated if those injuries were incurred at different times and while employed by different companies or while the same employer was insured by different companies.back injury

In the recent case of Greenville Country Club (Guard Insurance) v. Greenville Country Club (Technology Insurance), the question was which insurer should be responsible for paying benefits for an injured worker who suffered an aggravation of a previous injury. The question was which injury was aggravated. That was central in determining which insurer had to pay.

The plaintiff, from Delaware, suffered injuries to his lumbar spine in two separate – and compensable – work accidents. The first accident occurred in 2009, when the company was insured by Guard Insurance Group. The second occurred in 2012, when the company was insured by Technology Insurance.

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The South Carolina Supreme Court has issued an important workers’ compensation decision that will affect employees injured while traveling from one portion of an employer’s property to another, even if that reasonably necessary and direct route involves property that belongs to a third party. crosswalk

The case is Davaut v. Univ. of So. Carolina. Central to this matter was the “coming-and-going” rule, which generally precludes workers’ compensation benefits for workers who are injured while traveling to and from work. However, there have been exceptions when workers are injured on employer property, such as parking lots.

In the Davaut case, the state adopts the so-called “divided premises” rule, which holds that employees traveling from one part of an employer’s property to another over a direct and reasonably necessary route are acting in the course of employment for workers’ compensation purposes.

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Earlier this year as part of a new final rule on electronic record-keeping, the U.S. Occupational Safety & Health Administration warned employers against using automatic drug and alcohol testing – or the threat of it – to discourage workers from reporting an injury or filing a claim for workers’ compensation. That new rule set off a fierce debate about whether it was ever appropriate for employers to drug test employees following a workplace accident. Or is it across-the-board retaliatory? drugs

This prompted the agency to issue a memorandum recently that clarified its position. That memo indicated the agency won’t issue citations under the Electronic Recordkeeping Rule for drug tests that are conducted per state workers’ compensation law or for procedures that follow state or federal laws or regulations.

In order for the agency to issue a citation based on Section 1904.35(b)(1)(i)which involves a reasonable procedure for workers to report a work-related illness or injury promptly and accurately, OSHA has to be able to show either the company didn’t have a procedure for reporting a workplace illness or injury, or the employer’s procedure for reporting work injuries wasn’t reasonable. In other words, the procedure can’t unfairly burden or scare off an employee from filing a work injury report.

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Any time one suffers a work-related injury, the hope is that ultimately the person injured will be able to return to work – if possible in the same or a similar capacity. But in most common law scenarios, a return to work triggers a rebuttable presumption the worker has not permanently suffered a loss in earning capacity for disability benefits purposes. nurses

A rebuttable presumption made by the court (or other oversight body) is to be taken as true unless someone comes forward to contest and prove otherwise.

In the recent case of Hudspeth Regional v. Mitchell, the argument was that the plaintiff, who suffered a fall at work but ultimately returned to the same position, was not entitled to certain workers’ compensation benefits because there was a rebuttable presumption – based on her return to work – that she had not suffered a loss of earning capacity. Since she failed to rebut this presumption (because the courts hadn’t required her to do so), she hadn’t proven her case, the defendant/employer argued. The Mississippi Supreme Court agreed.

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