Workers compensation in a new “Lochner era”

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Last week I wrote about a 4th Ciicruit Court of Appeals decision, U.S.v Hill,  that upheld a federal hate crime conviction of an Amazon employee who assaulted his co-worker because he believed the co-worker was gay.

That post focused on how workers’ compensation laws could apply to a violent hate crime on the job. But in the big picture, Hill is an important case beause of its disucssion of the interstate commerce clause. The commerce clause is important to many areas of law including workers’ compensation

The Constitution gives Congress power to regulate commerce between states. The federal role in regulating interstate commerce has been argued in the federal appellate courts for nearly 200 years. The 4th Circuit does a good job of summarizing those arguments in U.S. v. Hill. (If you are lawyer or law student with a long flight coming up you can read the Lopez and Morrison decisions for even more background)

Workers’ compensation laws were enacted in the early 20th century when there was a relatively narrow definition of what constituted interstate commerce. Therefore Congress couldn’t enact general workers’ compensation laws, states had to enact workers’ compensation laws for them to be constitutional.

But the definition of interstate commerce was broadened in the 1930s during The New Deal. That broader definition of interstate commerce allowed Congress to enact the Occupational Health and Safety Act in the 1970s. That broad definition of interstate commerce also underlined federal efforts to impose minimum standards on state workers’ compensation laws. The threat of federal intervention in the 1970s and 1980s actually lead to states making their workers’ compensation laws more generous to employees. This stands in stark contrast to pro-corporate “reforms” that started in the 1990s once threats of federal intervention receded.

Federal hate crime laws are also based on relatively broad readings of the interstate commerce clause. The 4th Circuit broadly read the interstate commerce clause in the Hill case. But starting in 1995 with afore mentioned Lopez case, the Supreme Court has effectively narrowed the reach of the interstate commerce clause without formally overturning New Deal and post-New Deal case law broadly interpreting interstate commerce clause. The trial court and disenting judge in the 4th Circuit relied on that narrow reading of the commerce clause in Hill.

If you read the 4th Circuit’s and trial court decision in U.S. v. Hill along with Lopez and Morrison, most people would agree that the Supreme Court’s law on interstate commerce is a jumbled mess. The last time workers’ compensation laws were broadly improved on a national basis it happened under the threat of federal intervention. Employers likely wouldn’t have been able to challenge federal intervention in the 1970s or 1980s based on the interstate commerce clause. I’m much less sure of that in 2019. If workers’ advocates want federal intervention to improve state workers’ compensation laws, they may need to find other ways to make that intervention pass constitutional muster.

Lawyers who represent injrued workers tend to be skeptical of “federalization.” We have our reasons. Federal law can create serious hassles for medical charges related to air ambulances, negotating insurance liens under ERISA and Medicare Set Asides are a persistent headache as well.

But while federal law can cause hassles for injured workers and their lawyers, states gutting workers’ compensation laws is an a direct and existential threat to the well being of injured workers and their attorneys. The threat of federal intervention in state workers’ compensation laws in the 1970s and 1980s meant that workers’compensation plaintiff’s lawyers didn’t have that ever present sense of dread about the future of their practice.

Trial lawyers have had some luck fighting back against workers’ compensation reforms in state courts. But relief from the federal courts seems to be less likely. University of Michigan law professor Sam Bagenstos published a law review article about a return to the so-called Lochner Era when it comes to labor and employment law. This means case law will tend to favor employers. The Supreme Court’s interstate commerce clause decisions seem to algin with  Lochner era. Ultimately, appellate courts probably aren’t going to preserve let along substantially improve workers’ compensation laws. Those improvements will have to be made in the political arena.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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