May 20, 2024 An employee who was denied workers’ compensation benefits after being shot by a co-worker can proceed with a tort claim against his employer, a state appeals court in Florida has ruled. This case involves Giovanni Bastien, who worked at a Pepsi packaging and distribution facility in Medley, Florida. Bastien was shot by a co-worker who was “purportedly disgruntled over union activities,” the court’s decision says. Argument escalates to shooting A local news report gives more detail about the specific circumstances surrounding the shooting. It says that Bastien argued with co-worker Jimmy Lee Franklin at work about union issues before the two agreed to clock out of work and go find a place to fight. The news report adds that after the pair moved off site, the argument escalated and Franklin shot Bastien multiple times. Bastien then drove back to work before being taken to the hospital, it says. According to the court decision, Bastien told his manager while he recovered from his injuries in the hospital that he planned to file a claim for workers’ compensation benefits. The employer fought the workers’ compensation claim, saying that Bastien was not entitled to receive workers’ compensation benefits because his injuries did not occur within the course and scope of his employment. Workers’ compensation benefits denied The state’s division of workers’ compensation agreed with the employer. It denied Bastien’s claim entirely, noting that the shooting took place off the employer’s premises. Bastien responded to that development by filing a tort suit against the employer. The employer said that claim could not proceed because it was entitled to workers’ compensation immunity. In other words, the employer argued that workers’ compensation was the only avenue of relief available to Bastien – even though it had just argued that he was not entitled to workers’ compensation benefits. A trial court said the employer could not raise the immunity defense, and the employer filed an appeal. Appeals court explains The reviewing court explained that the state’s workers’ compensation is set up to ensure the quick and efficient delivery of disability and medical benefits to injured workers, and that it operates without regard to fault. Under the workers’ compensation system, it added, employees generally give up the right to sue for negligence in exchange for the rapid recovery of benefits. The rule that workers’ compensation benefits are an injured employee’s exclusive remedy has exceptions. One of those exceptions applies when an employer asserts that an employee’s injury did not occur within the course and scope of their employment. You can’t have it both ways That is exactly what happened here. The employer opposed the workers’ compensation claim on the basis that Bastien’s injuries did not occur within the course and scope of his employment. Then, it turned around and argued in the tort action that workers’ compensation was Bastien’s exclusive remedy. The court also noted that under state workers’ compensation law, employers cannot assert workers’ compensation exclusivity in cases involving intentional torts. The court’s decision does not explicitly address that exclusion’s application to Bastien’s injury. The court ruled that the employer could not assert the immunity defense. Though the employer may have celebrated what looked like a win when it avoided the claim for workers’ compensation benefits, now it must face the challenge of defending and defeating what could ultimately become a much more expensive claim against it. OSHA offers guidance The Occupational Safety and Health Administration (OSHA) has developed a number of resources that are designed to help employers keep violence out of their workplace. OSHA says factors that affect the risk of workplace violence include: whether money is exchanged with the public whether alcohol is served where the work is performed time of day location of work. As far as occupations that are more prone to involve violence, OSHA identifies the following: Workers who exchange money with the public Delivery drivers Healthcare professionals Public service workers Customer service agents Law enforcement personnel People who work alone or in small groups. OSHA recommends establishing a zero-tolerance workplace violence policy and advises employers to conduct workplace assessments that will identify ways to reduce the likelihood of a violent incident.

May 15, 2024 NAPLES, Fla. – In South Florida, one of the state's hottest regions, María González works outdoors cleaning planes. González spends her nights on the airport tarmac doing deep cleans of planes – scrubbing away feces, vomit, animal and human hair and more. Often, she said, airline staff turn off the plane’s air conditioning to save gasoline and money and let it sit on the asphalt, which radiates heat. “Hay mucho calor, entonces uno sude y sude y sude,” González said. “El calor se duplica ahora porque empiece el verano.” In English: it gets so hot on the planes as she cleans that she can’t stop sweating. And in the summer? The heat doubles. “Me siento como mal, como yo me fuera a desmayar,” said González, explaining that her blood pressure drops, and she often feels so ill that she thinks she’s going to faint. But in April, Gov. Ron DeSantis signed a law banning local municipalities from requiring employers to give heat breaks to outdoor workers such as González, a move DeSantis himself admitted to media was to slap back at one of Florida’s most progressive municipalities, Miami-Dade County, one county south from where she works. Only Miami-Dade County required employers to provide heat breaks to begin with. DeSantis' office did not respond to requests for comment. Still, his decision to get rid of home rule in a state that values small government and is one of the hottest states in the nation took some local officials aback and infuriated outdoor workers and their advocates in some of the hottest regions of the state. In a warming world, outdoor workers and organizations that protect them say heat and water breaks are a matter of life and death. “These pro-heat stress bills are really about making sure no one is held accountable if something bad happens to workers…if they get sick or die in extreme heat,” said Florida District Director for Miami-based custodial workers' union SEIU 32BJ Helene O’Brien. Florida holds municipalities to a heat standard that doesn't exist Florida House Bill 433 states that cities or towns don’t have a right to require employers to provide heat or shade breaks that the state or federal government doesn’t already require. Absent a state department of worker safety, Florida falls under federal OSHA jurisdiction, which covers most private-sector workers in the state. However, neither the federal government nor Florida has a heat standard that requires breaks at certain temperatures or sun exposure; advocates say the language is frustratingly vague. Federal workplace safety agency OSHA instead requires breaks "long enough for workers to recover from the heat." And while OSHA requires employers to provide water for workers, it doesn’t require that employers give their workers time to drink the water. The vagaries of the policy have allowed some companies to push the limits – until their workers feel the effects. And the threat of an OSHA investigation doesn't always strike fear into the hearts of management or owners. Just last summer, one farmworker, 29-year-old Efraín López García, died from heat exposure just hours into his first day on the job at a Homestead fruit farm. It was July 6, and the heat index hit 105 degrees that day, according to the National Weather Service. The farm labor contractor that employed him, McNeill Labor Management, was found to have exposed workers to direct sunlight and failed to implement protections. Despite its role in López García’s death, the company is now fighting the $27,655 in proposed penalties OSHA imposed upon the business. González says her employer, HHS Aviation, a cleaning company that contracts for Delta Airlines, has also ignored federal workplace safety standards. HHS Aviation does, in theory, provide water, González said. But not in practice. After multiple employees complained about a lack of water, which is against federal law, management purchased and placed a water cooler in the break room two months ago, she said. However, Gonzalez added, there is no water in it – and there has never been. This leaves González and her coworkers thirsty, even dehydrated. She carries water to work, but doesn’t have a place to store it outside her locker. She can’t carry it with her while cleaning, or waiting for a plane to arrive – she can only drink when she is on break near her locker. She said she was unaware of any other water sources available to the employees. HHS Aviation disputed González's accounts of the heat and lack of water in her workplace, insisting that employees were allowed to refuse to board a plane and begin cleaning until it was fully cooled, and were trained to stop working when it was unsafe to do so. Additionally, in an email, the company said employees have had access to clean drinking water since operations began Sept. 19, 2023. Too, HHS said, break areas contained bottled water and hallways sported communal water fountains. "HHS Aviation is committed to the health and safety of our team members, as they are our most valuable asset. We ensure all team members receive access to water, proper training, proper functioning tools and equipment, and designated rest periods," wrote marketing vice president Shannon Steck in an email. "We comply with all Occupational Safety and Health Act regulations, Transportation Safety Administration programs and directives, and applicable federal, state, and local laws and regulations." After the USA TODAY Network-Florida called HHS Aviation and Delta Airlines about González's complaints, she said management finally filled the water cooler in the break room. Delta Airlines declined to comment. Though O'Brien says SEIU 32BJ has filed federal complaints against HHS Aviation on González and her coworkers' behalf, OSHA and other federal agencies can be slow to act. And González and her union point to HB 433 as an example of the state not having workers’ backs, either. While the federal government is working on adding a heat standard for workers, it won’t be in place for at least two years, if not more – and will likely be killed if Trump wins the November election, worker advocates and heat experts say. Although Florida has hamstrung its municipalities with this law, O'Brien said laborers still have other options to fight the heat and negotiate better working conditions for themselves: unionization. “Maybe we need to be bigger at the state level and hold employers accountable for mistreatment of workers,” O’Brien said. “People are going to organize and going to fight … with whatever channels they have.”

May 13, 2024 After Florida lawmakers this year barred local heat protections for workers, a new study cites “strong and robust evidence that excessive heat increases the frequency of injuries” to workers — with risks particularly in the South. The Workers Compensation Research Institute last week released the study, which uses workers’ compensation insurance claims data and temperature data from 2016 to 2021. The study included data from 24 states in the South, Midwest and Northeast. In part, it found that the probability of work-related accidents increases by 5 percent to 6 percent when maximum daily temperatures top 90 degrees, compared to days when temperatures are 65 degrees to 70 degrees. It also cited a “clear increase” in numbers of days with temperatures over 90 degrees and 100 degrees over a four-decade period. “It is apparent that excessive heat has become more frequent, and if these trends continue, the result will be more heat exposure for the workforce,” the study said. The study was released less than a month after Gov. Ron DeSantis signed a bill (HB 433) that includes preventing local governments from requiring heat-exposure protections for workers. The bill, which also will prevent local governments from placing wage requirements on contractors, drew heavy debate during this year’s legislative session and was backed by business groups. The heat-related part of the bill came after the Miami-Dade County Commission last year considered a proposal to require construction and agriculture companies to take steps such as ensuring that workers have access to water and giving them 10-minute breaks in the shade every two hours when the heat index is at least 95 degrees, according to a House staff analysis. Supporters of the bill said it would prevent a patchwork of regulations and that employers already face requirements to protect workers from heat-related injuries. For example, Associated Industries of Florida said on its website in March that there “are clear standards employers must meet and this bill will prevent another level of regulation in this area and an unlevel regulatory playing field.” But dozens of organizations, such as the Center for Biological Diversity, Earthjustice, the League of Women Voters of Florida, the Farmworker Association of Florida and the NAACP Florida State Conference, urged DeSantis to veto the bill. One letter, for example, said preempting “local governments’ ability to protect workers from climate-caused extreme heat is inhumane and will have enormous negative economic impacts when lost productivity is taken into account.” The non-profit Workers Compensation Research Institute conducts studies of issues related to workers’ compensation insurance. A list of members and supporters on its website includes insurers, health-care companies and major businesses, such as Publix Super Markets, Inc. and The Walt Disney Co. The new study looked at temperature ranges and what it described as “direct” injuries to workers, such as heat exhaustion, and “indirect” injuries. As an example, an indirect injury could involve a worker growing fatigued and falling off a ladder. While researchers found an overall increase in risks as temperatures rose, researchers wrote that “we detected the largest effects of excessive heat in the South” and cited higher risks in the construction industry. The study said that under the federal Occupational Safety and Health Act, employers are responsible for “providing workplaces free of known safety and health hazards (also known as the ‘general duty’ clause), including protecting workers from heat-related hazards.” But it said “there is no federal occupational health and safety standard in effect to protect workers from heat exposure. OSHA has been taking steps toward the creation of a federal standard protecting workers against excessive heat that would more clearly set forth employer obligations and measures.” By Jim Saunders, News Service of Florida

April 26, 2024 Previous workers’ compensation claims can present an opportunity for agents serving small-business clients. The Hanover’s “2024 Small Business Risk Report: A Focus on Workers’ Compensation,” which surveyed 300 small business owners, found that a workers’ compensation claim experience can influence a small business owner’s confidence in their insurance program, including the services they value and the workplace safety measures they have in place. Once a small business owner experiences a claim, their insurance priorities shift away from price and toward safety. Almost 60% of small business owners who have not experienced a claim rank price as one of the two most important factors in their workers’ compensation purchase, while only 40% of business owners who have had more than one claim rank price as one of the top two factors in their purchase decision. The more claims a small business owner has experienced, the greater value they place on risk management and claims. About 45% of small business owners who experienced more than one claim rated risk management services as one of the top two considerations. More than two-thirds of small business owners consider an insurance agent’s recommendation to be a very important factor when purchasing workers’ compensation. Agents can leverage their experience and insights to educate customers about the importance of services and claims handling as essential components of their workers’ compensation program. Workers Comp Opportunities “With most business costs rising, small business owners continue to look for ways to reduce risk exposures,” said Charles F. Hamann, president of small commercial at The Hanover. Only 63% of small business owners without past workers’ compensation claims are very confident in current preventative measures to prevent workplace injuries, presenting educational opportunities to agents. And only 45% completely agree that they spend sufficient time exploring their insurance options. “The report data indicates small businesses value support from their independent agents. Additionally, the risk management services carriers offer today are critical to their success,” Hamann said. “While such services are ranked highly, there is an opportunity for agents and business owners to take a more proactive and holistic approach to worker safety.” About 67% of small business owners have had at least one workers’ compensation claim in the past five years. Once a claim occurs, confidence in a business’ safety culture significantly drops. While 70% rate safety culture as “excellent” when they have never experienced a workers’ compensation claim, only 48% rate it as “excellent” once they have faced a claim. For example, only 21% of small business owners take advantage of a nurse triage service before they experience a claim. This presents an opportunity for agents to educate customers on the value of proactive safety services. The number of small business owners using such a service jumps to 51% once they have experienced more than one claim. While most small businesses offer safety training, there are real opportunities to enhance safety with additional services. Businesses are not consistently taking advantage of: workplace hazard assessments (63%), business continuity planning resources (38%) and telematics, or driver safety monitoring (33%). Small business owners without claims also conduct fewer regular inspections and safety audits (51%) than owners with claims (68%). Fewer owners without claims (53%) have health and wellness programs than those who do have claims (65%). The majority (87%) of small business owners reported at least one change in the last 12 months, with 68% reporting they hired new employees. In addition to hiring and training new employees, 34% of small business owners said they had payroll changes in the past 12 months. Owners often provide these updates to their insurance agents, presenting an opportunity to deliver more value through convenient pay-as-you-go services for workers’ compensation. And while, 88% of respondents are confident they are adequately insured, small business owners anticipate many factors that could impact their workers’ compensation insurance program, including cost of insurance (56%), an economic downturn (39%), technological advances (37%) and mental health and stress-related claims (36%). By proactively consulting, the report concludes, agents can offer guidance and valuable insights, identify potential risks and ensure that small businesses are taking full advantage of risk management services to stay ahead of risk.

April 26, 2024 MANATEE COUNTY, Fla. (WWSB) - On April 23, 24, and 25, the Manatee County Sheriff’s Office, the Division of Investigative and Forensic Services with the Florida Department of Financial Services, and the Department of Business and Professional Regulation conducted a joint Workers’ Compensation Fraud/Unlicensed Contractor Operation. The purpose of the operation was to address unlicensed contractors working without the required contractor license and engaging in construction class work without the required workers’ compensation insurance exemptions. In total, 16 individuals were arrested, two were issued citations, and one received a summons. These legal actions were related to 49 charges of failure to obtain workers’ compensation coverage and unlicensed contracting. The following individuals were arrested for the listed charges: Brennan Fleet Tanner, 31: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical. Blaine Michael Benson, 31: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical. Francis E Jakubajtys, 58: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical. Andrew Clayton Sampson, 42: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical. Paul Roy Slaughter III, 39: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical. Aryam Garcia Bellido De Luna, 25: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical. Troy Childs, 55: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical. Pedro Antonio Laureano, 48: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical. Kerry Curtis Lee, 60: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing. Oscar Antonio Figueroa Zelaya, 52: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical. Luis A. Rosario, 42: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical. Christopher Valentin, 42: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical. Nicholas Joseph Austine, 54: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing. Kim Gordon Mcnulty, 40: fail to secure workers comp insurance coverage. Sergio Vargas-Olayo, 50: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical. Alan Hart, 40: fail to secure workers comp insurance coverage, engage in contractor business w/o certification-plumbing, engage in contractor business w/o certification-electrical, driving while license suspended.

On January 10, 2024, the Department of Labor (DOL) ushered in a new era for independent contractors with a comprehensive rule outlining six key criteria for classification. This landmark regulation aims to bring clarity and fairness to the classification process while imposing penalties for those who fail to comply. Let's delve into these criteria and the consequences of non-compliance. The Six Criteria Explained: 1.       Nature and Degree of Control:  This criterion examines the level of control exerted by the employer over the worker's tasks, schedule, and methods. Greater autonomy typically aligns with independent contractor status. 2.       Opportunity for Profit or Loss: Independent contractors bear the risk and potential for financial gain or loss based on their efforts and investments, distinguishing them from employees. 3.       Skill Required: The complexity and specialized nature of the work performed are considered. Jobs requiring specific expertise may lean towards independent contractor classification. 4.       Permanence of the Working Relationship: The duration and regularity of the working relationship are evaluated. Long-term or ongoing engagements may indicate an employment arrangement. 5.       Integration of Work into the Employer's Business: The extent to which the worker's services are integral to the employer's core operations is assessed. Essential tasks lean towards employee classification, while supplementary work tends towards independent contractor status. 6.       Degree of Independence: This criterion evaluates the worker's autonomy, including the ability to work for multiple clients and operate as a separate entity from the hiring company. Penalties for Non-Compliance: Failing to adhere to the DOL's classification criteria can result in severe penalties for employers. These penalties may include: •        Back Wages and Benefits: Misclassified workers may be entitled to back pay, overtime, and benefits they were denied due to misclassification. •        Civil Penalties: Employers found violating the rule may face civil penalties imposed by the DOL, including fines and monetary sanctions. •        Legal Costs: Legal proceedings resulting from misclassification can incur significant legal fees and expenses for employers. •        Reputational Damage: Non-compliance can tarnish a company's reputation, leading to loss of trust and credibility among stakeholders. •        Injunctive Relief: Courts may issue injunctions requiring employers to cease certain practices or take corrective actions to comply with the law. Navigating Compliance: To avoid the pitfalls of misclassification and ensure compliance with the DOL rule, employers should: 1.       Familiarize themselves with the six criteria outlined in the rule. 2.       Conduct thorough assessments of worker relationships to determine proper classification. 3.       Seek guidance from legal and HR professionals to mitigate risks and ensure compliance. 4.       Regularly review and update classification practices to align with evolving regulations. Summary: In conclusion, the January 10, 2024, DOL rule for independent contractors introduces clear classification criteria and imposes penalties for non-compliance. By understanding these criteria and taking proactive steps to comply, employers can navigate the complexities of worker classification with confidence and integrity. Work Comp Associates can help your company. Contact us to make your policy easy to manage and help you save money.

April 19, 2024 A trial judge improperly applied a contingency fee multiplier that resulted in increased attorneys fees awarded to a claimant’s lawyer in a workers compensation case, a Florida appellate court ruled Friday. The District Court of Appeal of Florida reversed a lower court decision that had awarded $14,310 in claimants legal fees in a lawsuit brought by Carlos Vargas IV against Foot & Ankle Center of Florida LLC. Mr. Vargas, a workers comp claimant, sued over claims that the center placed an illegitimate lien on his workers comp settlement proceeds after a center physician treated him for a work related injury. Mr. Vargas was later granted summary judgment on his claims. Read more