By this time next week, Wisconsin will likely have joined the ranks of "right to work" states. In the wake of similar transformations in Indiana and Michigan, this movement takes on the appearance of a wave threatening to overtake the nation. Washing away what remains of the legacy of worker protections instituted in a different time when more than 1 in 3 American workers had the benefit of union representation.
Despite the calamitous decline of labor in this country, at present fewer than 1 in 15 private sector workers have union representation, we are told that everything is ok. There was a time for unions, and now that time has passed, a sentiment aptly expressed in this recent letter to the editor from the Chicago Tribune:
Many letter writers have written to the Tribune’s Voice of the People in favor of unions. I agree that in much earlier times, unions were beneficial to correct wrongs such as low wages, no benefits and sweatshop conditions. But in more recent times, the pendulum has swung too far.
This sentiment, while prevalent, could not be further from the truth. We all know that low wages, and no benefits, are a serious problem in this country, however I'd gather that few of us fully understand the extent to which the most egregious violations against workers as fellow human beings have reemerged. That is, unless we've had the misfortune to learn the truth.
The history of worker's compensation dates back little more than a century to the Progressive Era, when states began to implement legislation that required companies to make workers injured on the job whole. Prior to this time, prevailing legal doctrines, and the gross poverty of much of the working class, had left those injured on the job little recourse but to accept whatever pittance was offered to them.
Before workers' compensation statutes were adopted by states, injured workers trying to recover medical expenses, lost wages, and other damages had to prove the negligence of their employer in a long, costly, and uncertain process—one that negatively affected their daily lives. Employers also had a number of defenses they could use to avoid liability for these injuries, making the process more difficult for injured workers. The most common defenses employers used were contributory negligence, which would prevent the employee from recovering any damages if he or she contributed even in a small way to the cause of the accident; the fellow-servant doctrine, which could reduce or eliminate the employer's liability if another employee was at fault; and the assumption-of-risk doctrine, which could limit a worker's recovery of damages if he or she knew of the hazards in the workplace and "assumed" those risks by going to work.
Various studies done by state employer liability commissions suggest that a number of injured workers received no compensation at all under the system that was in effect before workers' compensation laws. The late Professor Arthur Larson estimated that only about 17 percent of accidents were due to employer fault (Elgie 1998). In samples of fatal accidents, about half the families of victims of fatal accidents received some payments, but the average payment was about 1 year's income. In a few cases, accident victims, their families, or both received substantial payments, but in far more cases no payments were made at all (Fishback and Kantor 2000).
The establishment of worker's compensation schemes, while very beneficial for those injured, was not an act of charity. In exchange for providing compensation in the case of injury, employers received the benefit of limited liability, via the
no-fault doctrine.
The central tenet is that of "no-fault" insurance; industrial accidents are accepted as a fact of life and the system exists to deal with their financial consequences in as expeditious a manner as possible. Employers participating in the system have the notable benefit of tort exemption for injuries covered by workers' compensation.
A tort is a legal claim against another to receive compensation for injury. Historically, pursuing a tort claim meant coming up with the money up front. However, in the wake of the Second World War, the rise of trial lawyers, operating on contingent fees, have enabled less well off litigants access to legal recourse without regard to their economic circumstances. It is likely the case that the revocation of the grant of limited liability offered in exchange for participation in worker's compensation schemes would cost employers significantly more than whatever premiums they are now paying.
It is this context that makes the demolition of workers compensation by state governments all the more galling. An in-depth investigation by Propublica and NPR revealed a number of disturbing facts, among these:
* Since 2003, legislators in 33 states have passed workers’ comp laws that reduce benefits or make it more difficult for those with certain injuries and diseases to qualify for them. Florida has cut benefits to its most severely disabled workers by 65 percent since 1994.
* Where a worker gets hurt matters. Because each state has developed its own system, an amputated arm can literally be worth two or three times as much on one side of a state line than the other. The maximum compensation for the loss of an eye is $27,280 in Alabama, but $261,525 in Pennsylvania.
* Many states have not only shrunk the payments to injured workers, they’ve also cut them off after an arbitrary time limit — even if workers haven’t recovered. After John Coffell hurt his back at an Oklahoma tire plant last year, his wages dropped so dramatically that he and his family were evicted from their home.
* Employers and insurers increasingly control medical decisions, such as whether an injured worker needs surgery. In 37 states, workers can’t pick their own doctor or are restricted to a list provided by their employers.
* In California, insurers can now reopen old cases and deny medical care based on the opinions of doctors who never see the patient and don’t even have to be licensed in the state. Joel Ramirez, who was paralyzed in a warehouse accident, had his home health aide taken away, leaving him to sit in his own feces for up to eight hours.
We live in a country where the satanic mills have risen. Where injury on the job can mean a life of poverty for workers, while legal recourse against errant employers remains largely out of reach. Where the promise of a no-fault system, given in exchange for tort reform, has been broken.
And, yet ...
They say that the time when unions were necessary to protect workers has passed.