How the U.S. Supreme Court Deemed the Workers\u27 Compensation Grand Bargain Adequate Without Defining Adequacy

“During the second and third decades of the twentieth century, the U. S. Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers’ compensation statutes in the United States. Unknown to many, the statutes were largely the fruit of privately-sponsored investigations, principally by the Russell Sage Foundation and the National Association of Manufacturers, of European workers’ compensation systems during the first decade of the twentieth century. Some of those systems had been in existence since the 1870s and 1880s, and many employers preferred them to newly-emerging American employer liability statutes that retained tort liability while eliminating many or all affirmative defenses. The Minnesota Employees’ Compensation Commission and the National Civic Federation (NCF) catalyzed the national conversation on workers’ compensation from 1909-1911, and it was an NCF lawyer who was substantially responsible for a draft that became the first workers’ compensation statute upheld by the U.S. Supreme Court as constitutional. Contrary to the view held by some, the foundational Supreme Court opinions constitutionally authorizing the workers’ compensation “Grand Bargain”—statutory benefits for tort damages—set no workers’ compensation benefit floor. The article parses the opinions to emphasize the point, and then goes on to explore the context of what seems a strange omission. Ultimately, the article concludes that the Court “deferred,” sub silentio, to the private bodies of experts who had been investigating, reporting, and deliberating upon the European systems. The difficulty with the Court’s approach is that little has been left to posterity explaining what scale of employee benefits the Court might have deemed inadequate or unreasonable as an exchange for employee tort damages. The pregnant silence on federal constitutional boundaries continues to impact current discussions on limits to legislative reductions of workers’ compensation benefits. This absence of an explicit benefit floor should give pause to proponents of schemes seeking to export the workers’ compensation model to other legal regimes.

Progress in M-theory

After reviewing how M-theory subsumes string theory, we report on some new and interesting developments, focusing on the “brane-world”: circumventing no-go theorems for supersymmetric brane-worlds and complementarity of the Maldacena and Randall-Sundrum pictures. We also discuss the quantum M→0M→0 discontinuity of massive gravity with a Λ term. © 2001 American Institute of Physics.Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/87626/2/3_1.pd

Does Verbal Communication Impairment Affect Quality of Life in Amyotrophic Lateral Sclerosis Patients?

The purpose of this study was to examine the self-perceived QOL in ALS patients. Literature will be presented on the incidence, prevalence, prognosis, diagnosis and management of ALS, QOL studies for ALS, the role of the multidisciplinary team, the impairments and dysfunction that ALS patients experience, communication issues, and the development of ALS specific instruments to measure QOL. The bulbar dysfunction that ALS patients experience in salivation management, speech, and swallowing were examined in detail. The objectives of this research study were to investigate the following hypotheses: 1. QOL will differ among ALS patients with varying levels of speech, swallowing, and salivation functioning, 2. Patients with less impairment in these aspects of physical functioning will report better QOL. Archival data was obtained from a validation study for the ALSSQOL instrument that employed 7 university-based ALS centers. ANOVA revealed that self-reported QOL variedCommunication & QOL in ALS according to level of functioning for speech F (4,333) 5.13, p =.001; swallowing F(4, 333)= 6.88, p=.OOO; and salivation, F(4,333)= 3.75, p =.000. This research is important because it showed that QOLis adversely affected by impaired communication abilities. Having this knowledge will allow mental health providers to tailor time-sensitive interventions more appropriately, perhaps enhancing ALS patients\u27 QOL. Areas of future consideration include utilization of the ALSSQOL for longitudinal studies and for investigation of ALS patients\u27 mindsets as they prepare to experience each of the transitions during this predictable disease process

ALT-Labor, Secondary Boycotts, and Toward a Labor Organization Bargain

Recently, workers led by non-union labor advocacy groups, popularly labeled “ALT-Labor,” staged strikes and other job actions across the low-wage economy. Some observers see this activity as the harbinger of a reinvigorated labor movement or as audacious dissent by low-wage workers with nothing to lose. Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food restaurant or big box retail worker. This article presumes that employers will respond to ALT-Labor in a historically typical manner—by seeking labor injunctions and civil damages in courts. Labor injunctions are available under certain sections of the Labor Management Relations Act (LMRA) when “labor organizations” violate those sections. This article specifically considers whether ALT-Labor groups, though not unions in the traditional sense, are “labor organizations” under the LMRA, in which case they may be subject to federal court injunction and civil damages under the LMRA. The article concludes that ALT-Labor’s labor organization status is uncertain and will turn on a given group’s explicit statement of a “labor organization-like” purpose, and on whether it behaves like a statutory labor organization. Litigation premised on the labor organization status of an ALT-Labor group, therefore, poses risk for both sides—business and ALT-Labor

What COVID-19 Laid Bare: Adventures in Workers’ Compensation Causation

This Article performs a close analysis of workers’ compensation coverage of COVID-19 and arrives at the conclusion that it should not be “impossible” to prove in a legal sense that an employee’s COVID-19 was caused by work. Scientific proof is not the same as legal proof: Workers’ compensation law has never required that claims must be supported by irrefutable scientific proof of workplace causation. Yet repeatedly one heard this suggestion during public discussion on workers’ compensation coverage of employees. Still, there is good evidence that even when workers’ compensation undisputedly covers work-related disease, employers seldom pay benefits and states do not compel them to do so. This is one reality that COVID-19 laid bare: The workers’ compensation system rigidly resists paying occupational disease claims. This Article also explores a news account from Minnesota stating that 935 of 935 workers’ compensation COVID-19-related claims from meatpacking employees had not been paid as of February 2021. There was no shortage of other stories during the pandemic of mass denial of workers’ compensation claims in the meatpacking industry, a development having a disparate impact on communities of color, where more than half of all meatpacking employees are Latinx. These unpaid claim numbers suggest that something was “wrong” with causation analyses at the lower levels of the administrative system. Another truth COVID-19 laid bare is that, aside from workers’ compensation, there is no nationwide short-term disability program in the United States. This leads to the conclusion that, if workers’ compensation insists upon super-strict versions of causation to cover claims, a different method of compensating short-term disability during pandemics or other “environmental” crises may become necessary. The conclusion seems almost inescapable because public health experts like Dr. Anthony Fauci are warning that we remain at risk for “new disease emergences” for the “foreseeable future.

All the World’s a Platform?: Some Remarks on \u27Marketplace Platform\u27 Employment Laws

This paper addresses the enactment of marketplace platform laws, which have arisen as a remarkable feature of the gig economy in recent years. A marketplace platform law decides the question of whether an individual worker is an independent contractor or an employee — an ongoing controversy in all employment law, including workers’ compensation law — by emphasizing factors other than those normally considered in traditional legal analyses. As of this writing, seven states appear to have enacted marketplace platform laws. In short, marketplace platform laws — developed substantially and lobbied aggressively by the company Handy, Inc. — make it much easier to classify a worker as an independent contractor rather than an employee. Essentially, as the paper shows by analyzing one such law, if a company uses online enhancements in the operation of its business it may qualify as a marketplace contractor rather than an employer, whatever the degree of control of working conditions it may exercise de facto in the workplace. The paper shows how, in the case of workers\u27 compensation law, this de-emphasis of the control factor in assignment of responsibility for workplace injury flies in the face of original workers\u27 compensation theory. The development is also at complete odds with the ABC employee test, which not only emphasizes the control factor but places the burden of proof on employers to show absence of control. However one may come down on the employee status issue, there seems no denying that, in light of California\u27s substantial adoption of the ABC test in broad swaths of its employment law, what rights a worker has to legal protection is increasingly dependent on the worker\u27s state of residence or employment

New Labor Viscerality? Work Stoppages in the New Work Non-Union Economy

COVID-19 work stoppages involving employees refusing to work because they are fearful of contracting coronavirus provide a recent dramatic opportunity for newer workplace law observers to grasp a well-established legal rule: both unionized and non-union employees possess rights to engage in work stoppages under the National Labor Relations Act (“NLRA”). This article explains that employees engaging in concerted work stoppages, in good faith reaction to health and safety dangers, are prima facie protected from discharge. The article carefully distinguishes between NLRA § 7 and § 502 work stoppages. Crucially, and contrary to § 502 work stoppages, the health and safety-related work stoppages of non-union employees protected by NLRA § 7 are not subject to an “objective reasonableness” test. Having analyzed the general legal protection of non-union work stoppages and noting that work stoppages had already been on the rise during the preceding two years, the article considers when legal protection may be withdrawn from work stoppages because employees repeatedly and unpredictably engage in them—so called “unprotected intermittent strikes.” Discussing a recent National Labor Relations Board (“NLRB”) decision that could be misinterpreted, the article argues for an updated and strengthened presumption of work stoppage protection for employees wholly unaffiliated with a union who engage in repeated work stoppages that are arguably “intermittent.” The law should presume that the work stoppages of unorganized employees are not part of an illegitimate plan to drive an employer “into a state of confusion.” Next, the article grapples with looming work stoppage issues emerging from expansion of the Gig economy. When workers are not “employees,” peaceful work stoppages may increasingly become subject to federal court injunctions. The Norris-LaGuardia Act (the venerable 1932 federal anti-injunction law) does not by its terms apply to non-employees—possibly including putative non-employee Gig workers—raising the specter of a new era of “Government by Injunction.” Under existing antitrust law, non-employee workers may be viewed as “independent businesspeople” colluding through work stoppages to “fix prices.” The article argues that First Amendment avoidance principles should guide Sherman Act interpretation when “non-employee” worker activity does not resemble price fixing; that, consistent with liability principles articulated in the Supreme Court’s recent opinion in Sessions v. Dimaya, antitrust law’s severe penalties should not be applied to Gig workers given the ambiguities in federal and state law employee definitions. Finally, the article considers the potential for individual non-union private arbitration agreements to curtail the NLRA rights of employees to engage in work stoppages in light of the Supreme Court’s labor law-diminishing opinion in Epic Systems