If you asked the average person on the street, “If convenience store clerks at the same store were subjected to violent crimes, including murder, three times in the last five times, do you think you could bring a negligence case if the store failed to protect its worker from a violent attack ?” Most people would say yes.
Candidly, many people with legal training would say the same yes, but for the exclusive remedy of workers compensation.
The exclusive remedy rule is at the heart of the so-called “grand bargain” of workers compensation that provides limited benefits in exchange compensation regardless of employee or employer fault.
Like most workers compensation lawyers, I can recite that last paragraph in sleep. But sometimes employer-conduct can and should cause workers compensation lawyers to put aside technical legal thinking.
The convenience store I described in the first paragraph is the Kwik Shop at 14th and Adams in Lincoln, Nebraska. A clerk at that store was assaulted in late June. A clerk was murdered in 2016 and there was in assault on a clerk in 2020.
That store has done little to protect workers from violent crime. But workers compensation laws in Nebraska do little to incentive stores to protect late night convenience store clerks because they don’t cover purely mental trauma injuries. In other words, if a robber points a gun at a clerk, but doesn’t hurt them physically, that clerk can’t collect workers compensation benefits for the mental trauma.
But even if there is a physical injury, an employee is limited to benefits based on their wages. Employees don’t have the option of filing a negligence case where damages, in theory, are unlimited.
Retail workers are in a similar boat to other essential workers who had difficulties claiming workers’ compensation benefits due to COVID-19 exposure. In order for COVID-19 exposure to be covered by workers’ compensation they need to show either the injury arose out of and in the course and scope of employment or is a disease particular to their job. Those can be difficulty standards to meet and it prevented many workers from even seeking benefits.
Of course some states created presumptions of workers’ compensation coverage for COVID-19 for essential workers, but we did not in Nebraska.
So in short, essential workers are limited to workers compensation coverage for obvious on-the-job hazards that could be prevented or mitigated by their employers. But due to the structure of workers’ compensation laws, many of those hazards aren’t covered by workers’ compensation.
Of course other essential workers such as delivery drivers and taxi drivers are defined as contractors as so-called gig economy companies attempt to re-write our social insurance and employee classification laws to enrich their shareholders.
I think the structural weaknesses of workers compensation laws lead attorneys to look for ways to sue employers in tort, bad faith or even under retaliation laws. But these laws can be watered down by courts and civil litigation only pays people for harms after they happen. Stronger workers compensation laws that protected all workers from obvious hazards could make other types of litigation less necessary.
New manufacturing technology may also fail to take human factors into a consideration. An expensive new piece of machinery may increase productivity, but it may still require heavy lifting from a worker to process inputs. The new manufacturing economy probably won’t be as safe as portrayed in the pages of the Wall Street Journal and other publications targeted at wealthy professionals. Meanwhile, retail employment may be more dangerous than commonly understood.
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