Legal Corner

Workers' Compensation
High court rejects "take-home COVID" claims - California

In a unanimous ruling, the Supreme Court found employers cannot be held liable when workers contract COVID-19 on the job and spread it to their household members. In Corby Kuciemba et al. v. Victory Woodworks Inc, a construction worker transmitted COVID to his wife, who was hospitalized for several weeks and at one point was kept alive on a respirator. The couple sued the company for negligence, premises liability, and public nuisance. Although the court ruled that the exclusive remedy of workers comp does not bar a spouse's negligence claim against the employer if an employee brings COVID home, it found that the employer owed no duty of care to prevent the spread of the illness to the spouse.This would impose an intolerable burden on employers, the courts, and the community in contravention of public policy. Since duty of care is necessary in a negligence case, such cases would not succeed.

Uber loses challenges to collective PAGA standing - California

In Adolph v. Uber Technologies, the state Supreme Court concluded that a worker whose individual Private Attorneys General Act (PAGA) claims are sent to arbitration does not lose standing to pursue class-action claims in court. The driver for Uber Eats had signed an agreement to arbitrate on an individual basis work-related claims against Uber as well as "representative action on behalf of others under [PAGA] in any court or in arbitration." This decision undermines the significance of a 2022 U.S. Supreme Court ruling involving Viking River Cruises, which was considered a win for employers.

While a setback for employers, there are a few silver linings. Courts will have the discretion to stay PAGA representative claims pending arbitration of the individual claim. Legal experts suggest revising arbitration agreements to specify any representative claim be stayed pending the outcome of the arbitration of their individual PAGA claim.

Further, since the only requirement for PAGA standing is that the worker be an "aggrieved employee," if an arbitrator concludes a worker was not an "aggrieved employee," the court found the worker could no longer prosecute their non-individual claims due to lack of standing.

The future of PAGA is on the November 2024 ballot. "California Fair Pay and Employer Accountability Act of 2024" would eliminate PAGA and replace it with increased DLSE enforcement. In the meantime, employers should be vigilant about wage and hour compliance and review arbitration agreements considering the ruling.

Employers must reimburse stay-at-home workers for expenses - California

In Thai v. International Business Machines Corp., IBM argued that it was not responsible for reimbursing employees during the state-wide COVID stay-home mandate because it was the Governor's orders, not IBM, that caused the work expenses to be incurred. The Court of Appeals disagreed noting that section 2802 does not contain a causation requirement but requires reimbursement of all expenses incurred by employees that are necessary to perform their job duties. This includes internet use, cell phones and telephone lines, laptops and computers, as well as other items such as business mileage. There are unanswered questions if this extends to such things as electricity and other utilities, or if employees who voluntarily opt to work from home are entitled to reimbursement.

Employers facing thousands of court cases with biometric privacy law - Illinois

In Cothron v. White Castle System, Inc., the Supreme Court refused to reconsider the divided ruling it issued in February that employers can be fined for each time they allegedly violate the Illinois Biometric Privacy Act (BIPA), in response to a petition for a rehearing of the case. It will now be up to the General Assembly to reconsider amending BIPA, which it failed to do in the last session. The 2008 law enables workers to be awarded $1,000 for each negligent violation or $5,000 for each intentional or reckless violation.

In the first biometrics privacy class action to go to trial, Rogers v. BNSF Railway Company, a class of more than 45,000 truck drivers won a $228 million judgment, after a jury found that BNSF Railway Co. violated state law by collecting employee fingerprints without proper consent. Although a U.S. Judge upheld the jury's liability verdict, he ordered a new trial on damages. He noted that damages under the law were discretionary, and so "BNSF is entitled to have a jury determine the appropriate amount of damages."

Shipowner not liable for the longshoreman's injuries caused by unknown dangers - Indiana

In Smith v. Crounse Corp., Crounse Corp. was responsible for delivering barges to Mulzer Crushed Stone, which would clean the barges, load them with crushed stone, deliver the stone, clean the barges again, and release them back to Crounse. When one of Mulzer's employees was using a skid steer with a blade to push the coal to one end of the hopper the blade struck a "scab," and his seatbelt failed propelling him forward. He sued Crounse for his injuries under the Longshore and Harbor Workers' Compensation Act, as well as general maritime law. However, the Seventh Circuit Court of Appeals found he did not present sufficient evidence that the inspection and repair procedures were inadequate, or that Crounse possessed actual knowledge or should have reasonably known about the defect through exercising ordinary care. Further, this was a problem likely to be encountered by a stevedore during cargo operations and anticipated by him in the performance of his work.

Exclusive remedy applies to medical fee disputes - Missouri

In a potentially far-reaching opinion, Orthopedic Ambulatory Surgery Center of Chesterfield LLC v. Sharpe Holdings Inc., a Court of Appeals held that any disputes from a medical provider relating to payment for treatment in a workers' compensation case may only be brought as a Medical Fee Dispute under the Workers' Compensation Act. The health care providers initiated civil litigation for breach of contract, unjust enrichment, negligent misrepresentation, and other claims concerning partial payment by employers' comp insurers, but the court found they are subject to comp exclusive remedy in fee disputes.

Benefits denied in several cases related to fear of COVID infection - New York

In Djanuzakov v. Manhattan & Bronx Surface Transit Operating Authority, an appellate court upheld a denial of benefits to a bus driver who claimed psychological injury from potential exposure to COVID-19 and the related death and illness of his co-workers. In Matthews v. New York City Transit Authority an appellate court ruled that a train conductor was not entitled to benefits for the alleged exacerbation of preexisting psychological problems because of stress from his potential exposure to COVID-19. In both cases, the court found the stress that caused the injury was not greater than that which other similarly situated workers experienced in the normal work environment.

In Brown v. New York City Transit Authority, an appellate court ruled that a transit employee failed to prove she suffered a psychological injury from her potential exposure to COVID-19 at work. The board found that the psychologist's opinion on causation lacked credibility and was insufficient to establish a causal relationship and did not reflect her prior treatment for anxiety.

Employee who sustained injuries at two separate employers entitled to concurrent indemnity benefits - Pennsylvania

In Barnes v. School District of Philadelphia (WCAB), an employee suffered two separate injuries while working for two separate, but concurrent, employers. After he fully recovered from his first injury, a Workers Compensation Judge reduced his benefits and the Board affirmed. However, upon appeal the Commonwealth Court reversed, finding the employee was unable to return to work because of the injury he sustained at his other employer. The full recovery from the first injury thus had no bearing on his entitlement to concurrent employment indemnity benefits.