Archive for the ‘workplace safety’ Category
In the aftermath of the California Supreme Court’s landmark decision in Brinker Restaurant Corp. v. Superior Court(2012) 53 Cal.4th 1004 (Brinker), employers and non-exempt employees are still hashing out the implications of the clarified meal and rest period requirements. In April, Bryan Schwartz Law discussed the implications of that case on this blog, which can be found here: California Supreme Court’s Long-Awaited Brinker Decision.
Last week, in Bradley v. Networkers International, LLC (December 12, 2012) —Cal. Rptr.3d —, 2012 WL 6182473, the California Court of Appeal in San Diego addressed a common problem in meal and rest period cases: where an employer has no compliant meal and rest period policies that are distributed to employees. This case makes clear that a lack of a meal or rest period policy can provide sufficient commonality for class certification, which is a significant victory for plaintiffs.
While the Brinker case was pending, a number of cases appealed to the Supreme Court were granted review and held, pending the decision in Brinker. Among the cases relegated to judicial limbo was Bradley v. Networkers International, Inc. (Feb. 5, 2009, D052365). In Bradley, three plaintiffs filed a class action complaint against Networkers International, LLC, alleging violations of California’s wage and hour laws including nonpayment of overtime and failure to provide rest breaks and meal periods. The plaintiffs moved to certify the class, which requires that they “demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” Brinker, 53 Cal.4th at 1021. The court determined that the plaintiffs did not demonstrate that common factual and legal questions would predominate over the individual issues and denied class certification. The plaintiffs appealed, but the decision was upheld by the California Court of Appeal.
Plaintiffs appealed to the California Supreme Court, which granted petition for review but held the case for over three years until Brinker was resolved. After issuing their decision in Brinker, the California Supreme Court remanded Bradleyto the California Court of Appeal, Fourth Appellate District, with directions to vacate its decision on class certification and reconsider the case in light of the Brinker decision.
Before getting to the recent decision from the Fourth Appellate District, a little background is useful. A common fight between employers and employees arises when an employer classifies its employees as “independent contractors,” as opposed to employees. True independent contractors have control over the terms and conditions of their employment and are not subject to California wage and hour protections including overtime and meal and rest periods. Employees, on the other hand, remain under their employer’s control during their working hours and are protected by California’s wage and hour laws. The employee versus independent contractor issue has been a battleground for years in the employment law arena and California courts have developed numerous criteria to assess whether an individual is truly an independent contractor or an employee.
In the recent Bradley case, the three plaintiffs alleged that they were misclassified as independent contractors, and should instead have been treated as employees. All three of the plaintiffs worked for Networkers. Each of the plaintiffs was required to sign an “independent contractor agreement,” which stated that each was an independent contractor rather than an employee. As such, plaintiffs did not receive overtime pay or meal or rest periods. However, contrary to the terms of the agreement, the plaintiffs alleged that they were treated as employees and were subject to the same employment policies.
Networkers argued that plaintiffs’ motion to certify the class should be denied because the case did not involve common questions of fact or law, and therefore, resolution of the case would require mini-trials for each plaintiff. Although the court agreed with Networkers on the first go-around, after the Brinker decision, the court agreed with plaintiffs on all but one cause of action.
The Court of Appeal’s Decision on Remand
Because Networkers applied consistent companywide policies applicable to all employees regarding scheduling, payments, and work requirements, those policies could be analyzed on a class-wide basis. The court would not need to assess them with respect to each potential class member. In analyzing whether class certification was appropriate the court noted that, “[t]he critical fact is that the evidence likely to be relied upon by the parties would be largely uniform throughout the class.” The court held that the factual and legal issues related to the independent contractor issue would be the same among the plaintiff class members, and therefore appropriate for class treatment.
Moreover, in Bradley, as in many workplaces, the employer did not have a policy actually distributed to employees that provides for meal and rest periods. Networkers argued that Brinker was not controlling, in its guidance about meal and rest requirements, because in Brinker the plaintiffs challenged an express meal and rest break policy whereas in Bradley, the plaintiffs were arguing that the employer’s lack of policy violated the law. The Court rejected this argument, holding: “This is not a material distinction on the record before us. Under Brinker, and under the facts here, the employer engaged in uniform companywide conduct that allegedly violated state law.” Bradley, 2012 WL 6182473 *13. The Court noted that plaintiffs had presented evidence on Networkers’ uniform practice and that Networkers acknowledged that it did not have a policy and did not know if employees took meal or rest breaks. In assessing the lack of evidence presented by Networkers and relying on Brinker, the Bradley Court held: “Here, plaintiffs’ theory of recovery is based on Networkers’ (uniform) lack of a rest and meal break policy and its (uniform) failure to authorize employees to take statutorily required rest and meal breaks. The lack of a meal/rest break policy and the uniform failure to authorize such breaks are matters of common proof.” Bradley, 2012 WL 6182473 *13.
The Bradley decision disposes of a significant hurdle in wage and hour cases by holding that this type of scheme – where no policy is distributed to provide for meal and rest periods- can meet the commonality requirement for class certification. For example, Bryan Schwartz Law is currently representing a group of restaurant workers who were not aware of a meal/rest period policy, and who were not provided with meal or rest periods. In the Bryan Schwartz Law case, there was no policy that provided the workers with coverage to enable them to take their breaks. Under Bradley, certification is appropriate to test, class-wide, whether the employer’s lack of a well-defined policy or practice of providing meal/rest periods violated the Labor Code.
Although several meal and rest period cases have been decided adversely to workers post-Brinker, the Bradley court determined that each of those cases was distinguishable. In distinguishing Lamps Plus Overtime Cases (2012) 209 Cal.App.4th 35, the Bradley Court of Appeal noted that it was undisputed that the Lamps Plus employer’s written meal and rest period policy was consistent with state law requirements and that the violations differed at each store and with respect to each employee. Similarly, the Bradley court held that Hernandez v. Chipotle Mexican Grill, Inc. (2012) 208 Cal.App.4th 1487 was distinguishable because the only evidence of a company-wide policy or practice was Chipotle’s evidence that it provided meal and rest breaks as required by law. Likewise, Bradley distinguished Tien v. Tenet Healthcare Corp. (2012) 209 Cal.App.4th 1077, noting that in that case there was “overwhelming” evidence that meal periods were made available and the employer’s liability with respect to each employee depended on issues specific to each employee. Brookler v. Radioshack Corp. is an undecided case that was remanded after Brinker involving wage and hour class certification, which may provide additional clarification on these issues.
The court also rejected Networkers’ argument that because each plaintiff would be owed a different amount of damages, the case should not be certified. Relying, in part, on the concurring opinion in Brinker, the court held that even where plaintiffs are required to individually prove damages, individualized damages inquiries do not bar class certification. The court also reversed its prior decision and determined that class certification on the issue of overtime was appropriate because, assuming the plaintiffs were employees, proof of damages could be determined from the common proof of the pay records.
Although the court decided to remand the off-the-clock work issue, it did so because the factual record did not show that there was a uniform policy requiring each employee to work off the clock.
About the Author: Bryan Schwartz is a practicing attorney. If you believe you have been mis-classified as an independent contractor, have meal and rest period claims, or have questions about other wage and hour violations, contact Bryan Schwartz Law (www.BryanSchwartzLaw.com). Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement with Bryan Schwartz Law to be a client of this firm or author.
First, they lose pay because the vast majority (more than 80%) of low-wage workers do not have any paid sick leave to take time off to recover. Second, not only does the pay check shrink, but because of inadequate workers’ compensation laws, they must shoulder a bigger portion of their health care costs with those smaller paychecks. That means workers and their communities must bear a larger share of the $39 billion (in 2010) that workplace injuries and illnesses cost the nation.
A new policy brief, “Mom’s Off Work ’Cause She Got Hurt: The Economic Impact of Workplace Injuries and Illnesses in the U.S.’s Growing Low-Wage Workforce,” examines the growing problem.
Using information from a study, by University of California, Davis, economist J. Paul Leigh, on the number and cost of injuries and illnesses among low-wage workers, Celeste Monforton, a professorial lecturer in environmental and occupational health at George Washington University School of Public Health and Health Services (SPHHS), and SPHHS researcher Liz Borkowski explore how workplace injuries and illnesses impact the lives of low-wage workers. Says Monforton:
Workers earning the lowest wages are the least likely to have paid sick leave, so missing work to recuperate from a work-related injury or illness often means smaller paychecks. For the millions of Americans living paycheck to paycheck, a few missed shifts can leave families struggling to pay rent and buy groceries.
Leigh’s study classifies about 31 million people—22% of the U.S. workforce—in 65 occupations for which the median wage is below $11.19 per hour as low-wage workers. The janitors, housecleaners, restaurant workers and others earning that wage full-time will bring home just $22,350 per year—an amount that means a family of four must subsist at the poverty line
In 2010, 596 low-wage workers suffered fatal on-the-job injuries and 12,415 died from occupational ailments, including certain kinds of cancer. Another 1.6 million suffered from non-fatal injuries, and 87,857 developed non-fatal occupational health problems such as asthma. The costs of the 1.73 million injuries and illness amounted to $15 billion for medical care and another $24 billion for lost productivity—the cost when injured or sick workers cannot perform their jobs or daily household duties.
But as Monforton and Borkowski point out, workers’ compensation insurance either does not apply or fails to cover many of these costs, which can bankrupt families living on the margin. In some cases, employers do not have to offer this kind of insurance to employees.
And even workers who do have the coverage often get an unexpected surprise after an on-the-job injury or illness: Insurers generally do not have to provide wage replacement until the worker has lost between three and seven consecutive shifts. And workers at the low end of the wage scale are often discouraged from reporting on-the-job injuries as work-related—which leaves them with no insurance benefits at all.
According to Leigh, insurers cover less than one-fourth of the costs of occupational injuries and illnesses. The rest falls on workers’ families, non-workers’ compensation health insurers and taxpayer-funded programs like Medicaid.
When low-wage workers miss even a few days of pay while recovering from an occupational injury or illness, the effects spread quickly,” says Borkowski.
They will usually have to cut back on their spending right away, which affects the local economy. And families with children might skip meals or cut back on the heat, money-saving tactics that can put vulnerable family members such as children at risk of developmental delays and poor performance in school.
The authors call on policymakers to address this public health problem more forcefully by improving workplace safety and strengthening the safety net to reduce the negative impacts caused by the injuries and illnesses that still occur. Says Monforton:
On average, more than 4,000 workers are injured on the job each day. If we make workplaces safer, we not only stop losing billions of dollars each year, but we also could reduce the pain and suffering and financial impact on thousands of low-wage, hard-working Americans and their families.
The reports are posted here: http://defendingscience.org/low-wage-workers.
This article was originally posted on AFL-CIO NOW on December 14, 2012. Reprinted with Permission.
About the Author: Mike Hall is is a a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. When his collar was “still blue,” he carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse.
When I first read about the horrendous fire in Bangladesh, I immediately thought of the Triangle Shirtwaist Fire in New York in 1911 — more than 100 years ago. In many ways, nothing has changed. In some ways, some things have changed.
Nothing has changed in 100 years — workers’ lives are thought of as expendable, corners are cut in the name of profit, whether the name is Triangle Waist Company or Wal-Mart.
What did change a bit in the wake of the 1911 fire was a renewed drive to unionize and strengthen health and safety laws. Out of the tragedy, workers mobilized.
Whether that will happen in Bangladesh is to be seen. It would be a great testament to those who died is, out of the ashes of the fire, workers organized to stop the survivors and others from being future victims of the greed of Wal-Mart and its global corporate ilk.
This post was originally posted on Working Life on December 7, 2012. Reprinted with Permission.
About the Author: Jonathan Tasini is a union leader and organizer, a social activist, and a commentator and writer on work, labor and the economy. From 1990 to April 2003, he served as president of the National Writers Union (United Auto Workers Local 1981). He was the lead plaintiff in Tasini vs. The New York Times, the landmark electronic rights case that took on the corporate media’s assault on the rights of thousands of freelance authors. He has also written four books, including the Audacity of Greed.
Cheap. Low prices. Bargains. It’s the American way of recent decades–a promise we’ve been given by everyone from politicians to corporate marketing campaigns. And most people find it hard to see the devastating cost to us as a society. But, sometimes things happen at once that can give a very clear picture, if you look. For your consideration.
First, a now well-known episode:
Second, some of those cheap goods people snap up at Ikea were made by slave labor:
And, lastly, Black Friday is approaching–and Wal-Mart workers are asking for people to assist in their fight back against the Beast of Bentonville, the paragon of low-cost.
So, the lesson:
If we pull all those strands together–the destruction of the lives of thousands of workers who made Twinkies; the sweat that brought people the couch or bed they picked up in their car at Ikea; and the hard times hundreds of thousands of people have to endure to eke out a tiny paycheck from Wal-Mart–it tells the tale of America.
Cheap means the end of the middle-class, not to mention the mythical American Dream because cheap means minimum wage jobs, no health care, no pensions.
Low-cost means paychecks that don’t make it possible for a worker to get through the end of the month without seeing her or his financial debt grow larger.
Bargains are only beneficial to the fat-cat CEOs who pocket obscene paychecks because hidden behind that “bargain” price is an endless cycle of poverty and despair: to give millions of people “bargains”, CEOs manufacture products in low-wage countries or low-wage factories, and, the, they pay–or fire, in the case of Twinkies–workers every declining wages…and, then, those same workers don’t have enough money to buy much–so they are forced to, then, shop at the very low-wage stores–Wal-Mart being the prime example–that are the engine for the destructive cycle.
Just something to think about everytime we are assaulted by a TV ad, or coupon or billboard promising a bargain.
It isn’t more than a bargain with the devil of the bankrupt so-called free market.
This article was originally posted on Working Life on November 16, 2012. Reprinted with Permission.
About the Author: Jonathan Tasini is is a strategist, organizer, activist, commentator and writer, primarily focusing his energies on the topics of work, labor, and economy. In 2006, he unsuccessfully challenged incumbent U.S. Senator Hillary Rodham Clinton in the Democratic primary.
During the last stages of the campaign, Mitt Romney falsely tried to claim that American manufacturers like Chrysler were moving production to China. As it turns out, at least one company is planning the opposite move: Foxconn Electronics, the notoriously exploitative Apple Inc. manufacturer, is reportedly testing the waters to open new plants in US cities. Foxconn attracted scrutiny earlier this year when its abusive labor practices in Chinese and Taiwanese factories were exposed in a series of New York Times articles.
According to Chinese newspaper DigiTimes, Foxconn is conducting evaluations in Detroit, Los Angeles, and other cities to possibly open plants focused on LCD television production. The company is also discussing a partnership with Massachusetts Institute of Technology that would bring American engineers to China and Taiwan to learn Chinese and study product design processes.
Foxconn became a household name in the US after a mostly exaggerated and false This American Life segment detailed its mistreatment of workers. Despite the mythology presented in the episode, certain core facts were verified. Foxconn workers live in overcrowded company dorms, working shifts of 12 or more hours, and risk serious injury in appallingly dangerous working conditions. As many as 137 employees fell ill after being forced to clean iPads with toxic chemicals, and 17 Foxconn workers committed suicide in the past five years. The company has also been accused of forcing student interns to assemble iPhones.
Under pressure, Foxconn raised wages for employees and reduced hours, but its still far from meeting basic labor standards. After the company admitted it was struggling to meet demand for the iPhone 5, rumors of a strike over “overly strict demands” emerged.
This article was originally posted on Think Progress on November 8, 2012. Reprinted with permission.
About the Author: Aviva Shen is a Reporter/Blogger for ThinkProgress. Before joining CAP, Aviva interned and wrote for Smithsonian Magazine, Salon, and New York Magazine. She also worked for the Slate Political Gabfest, a weekly politics podcast from Slate Magazine. Previously, she was part of the new media team in Ohio for the 2008 Obama campaign. Aviva received a B.A. from Barnard College.
The United Mine Workers of America is sitting out this presidential race as Mitt Romney and President Barack Obama battle over parts of coal country. But former UMWA president and current AFL-CIO President Richard Trumka spoke to the press Monday not just as an advocate for all workers but from the perspective of a third-generation coal miner.
While Romney has centered his coal country campaign on inaccurate claims that overregulation by the Obama administration has weakened the coal industry (Romney’s beloved free market is the real culprit), Trumka pointed to how workplace safety is enforced in this dangerous industry:
Among the regulations and oversight that Romney would weaken or abolish are those that save miners’ lives. So it’s important that Romney’s “Obama’s war on coal” rhetoric not be allowed to cloud the picture, obscuring that coal’s recent struggles aren’t due to regulation, and that when he talks about regulations, he’s talking about people’s lives. Beyond that, Trumka drove home the distance between the coal miners Romney pretends to care about and Romney’s own life:
This article was originally published by The Daily Kos on Monday, October 29, 2012. Reprinted with permission.
About the Author: Laura Clawson is a Daily Kos contributing editor since December 2006, and a Daily Kos Labor editor since 2011.
No matter how good your next meal tastes, it’s likely it made society ill.
A new analysis by the Pesticide Action Network North America (PAN) draws a disturbing connection between pesticides in our food system and serious health problems among women and children. The report reviews empirical research linking agricultural chemicals to birth defects, neurological disorders, childhood cancers and reproductive problems.
Some of these chemicals make their way into the foods we eat, but they are more acutely concentrated in the environments surrounding farmlands. Children in or near farming areas can be exposed through myriad channels, from contaminated soil to the air in playgrounds.
But children in farmworker communities are especially at risk. While the report confirms the growing public concerns about health risks permeating our food chain, it also shows how socioeconomic inequalities can shovel many of the worst effects onto exploited, impoverished workers.
There’s been much public debate over the importance of organic produce, sustainable farming and regulating genetically modified foods–usually spurred by concerns over consumer health or animal rights. We hear less about the safety concerns that affect the workers who handle our fruits and vegetables before anyone else. For many Latino migrant workers, there’s no equivalent of a comprehensive safety label–no option to avoid the ubiquitous poisons in the field. Many worry that to complain about working conditions would mean being fired. Others simply–and quite reasonably–have little faith in the anemic government regulatory systems.
PAN cites research showing that pesticide injuries are prevalent among agricultural workers. Various studies cited in the report also suggest an epidemic of chemical “drift” from fields into nearby homes and neighborhoods. According to a 2009 report by the advocacy groups Earth Justice and Farmworker Justice (FWJ), “a growing number of epidemiological studies link pesticide drift to specific adverse health effects in humans, including autism spectrum disorders, Parkinson’s disease, and childhood acute lymphoblastic leukemia.”
While the problem is politically invisible, the effects are all too apparent. The PAN report describes the experience of Ana Duncan Pardo, a community health activist in North Carolina, who had a jarring encounter with farmworker families:
The effect is likely compounded by the widespread use of child labor in agriculture–children barely in their teens can legally work on farms. That puts kids in daily contact with toxins that could irreparably harm their brains and bodies.
A FWJ briefing paper points to a history of vast dissonance between the federal regulation of harmful pesticides for heavily exposed workers, and parallel standards for the general public. The Federal Insecticide, Fungicide, and Rodenticide Act establishes public health-based safety protections, for example, but environmental advocates point out that farmworker families’ health vulnerabilities are neglected and essentially ignored in regulatory assessments of the social costs of industrial pesticide use.
Children of farmworker families are left with far weaker protections despite their special vulnerability. Despite some restrictions on child workers handling pesticides, according to FWJ, “Children under 16 can still handle Category III or IV pesticides even though the chronic hazards associated with these chemicals include ‘potential neurotoxicity, reproductive toxicity, endocrine disruption, and carcinogenic effects.’”
Even if they don’t work in the fields, the children of farmworkers are not necessarily safe in their own homes. Virginia Ruiz, FWJ’s director of Occupational & Environmental Health, explains that farmworkers working with pesticides carry “take-home residues” on their clothes and skin. While safety warnings recommend avoiding physical contact with contaminated workers, Ruiz says, “It’s sort of unrealistic expectation of people to refrain from hugging their children and other family members as soon as they get home.”
The PAN analysis urges consumers and parents to take action for stronger safety protections. These could include mandates to phase harmful pesticides out of the market, and promoting pesticide-free school lunches and playgrounds.
Nonetheless, the battle against the pesticide threats on farms can’t be limited to the consumer end of the food chain. Farmworkers need to be engaged as stakeholders in pursuing just solutions to the unique risks posed to their communities. Farmworkers have played a leading role pushing for tighter EPA regulations as well as grassroots efforts to mobilize communities against pesticide drift. For example, a community-driven campaign in California’s Central Valley led to the creation of buffer zones to keep pesticide contamination away from sensitive locations like schools, farmworker camps and residential areas.
Kristin Schafer, coauthor of PAN’s report, tells Working In These Times, “Farmworker families were essential to the success of these efforts–some working behind the scenes, others speaking out to demand protections for their families.” She adds that environmental monitoring projects in other farmworker communities have provided opportunities for laborers “to document pesticide drift from neighboring fields, and use [this] as scientific evidence to advance these protections.” Community activists are now pressing California’s regulatory authorities to transition farms away from pesticides and toward greener alternatives.
Still, in every policy debate, farmworker families will face tremendous barriers of race, language ability, political disenfranchisement and poverty. Those aren’t chemical threats, but they constitute the climate of oppression that blankets the nation’s farms, and that corrosive cloud is now drifting into all our communities.
This post originally appeared in Working In These Times on October 20, 2012. Reprinted with permission.
About the Author: Michelle Chen’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at firstname.lastname@example.org.
South Africa’s mining industry has been plastered across international headlines in recent days following the massacre of 34 protesting platinum mine workers in Marikana. This week, thousands of striking workers marched to protest the assault on labor rights and economic security by both the police and corporations.
But while the media’s gaze has fixed on roiling unrest at Lonmin, the more insidious crisis of safety conditions in the mines remains mostly buried below the surface. Over the years, perhaps hundreds of thousands of workers have been gradually sickened or killed by an epidemic that has largely gone ignored by the industry and the post-Apartheid government.
But now, some workers are resisting injustice in the mines by going to court, with a group of lawsuits alleging that three gold mining companies sickened many employees with toxic exposures that are tied to “varying degrees of silicosis”–a disease that causes chronic breathing problems–as well as tuberculosis and lung cancer.
The legal claims, which target AngloGold Ashanti (formerly Anglo American), Harmony Gold Mining Company, and Gold Fields, have been advanced by a recent landmark ruling by the South African Constitutional Court. The decision affirms that injured workers have the right to sue employers for occupational health-related damages.
The principle behind the litigation, according to Richard Lewis, an attorney with Hausfield LLP who is assisting the South African counsel, is that that the country’s mining regulations, some stretching back decades, as well as common law and the constitution, “impose a duty on the employer to provide safe and healthy working conditions.”
Lewis notes the decision is “uniquely” progressive, even compared to the legal framework in richer industrialized countries like the United States, because the recent court decision effectively offers an alternative to the traditional workers’ compensation system, which is known for woefully inadequate payments to sick workers–and for discrimination against black claimants.
“Usually one’s claim against an employer is limited to the workers’ compensation system,” Lewis says. “You can’t go to court in the civil common law system and sue for damages. But here… in South Africa the miners do have that right, to go beyond the compensation system and into the common law courts.” (In the United States, injured workers often face dysfunctional state workers’ compensation bureaucracies that tend to get ensnared by severe budget pressures.)
Even when workers aren’t being mowed down by police, death is never far from South Africa’s mines; workers have been routinely exposed to toxins with appallingly minimal physical protection. In a Reuters investigation published in March, a mine worker interviewed in Lesotho, who had worked for Gold Fields for more than three decades before being laid off in 2008, explained the do-it-yourself safety protocol:
The impact of the gold miner litigation could be massive: According to Hausfeld, “between 320,000 and 500,000 black southern African gold miners have contracted silicosis and other occupational lung diseases in prior decades. The highest recorded rates of TB in the world have been found in the gold mines of South Africa and the disease figures have remained unconscionably high for decades.”
The next step for the current plaintiffs is to press forward with certification as a legal “class” and move toward a trial. The structure of the litigation leaves the door open for more workers to join the suit down the line, and some experts anticipate an explosion of claims due to the size of the workforce, the widespread presence of migrant workers from countries like Botswana and Malawi, and the prevalence of silicosis.
As with many other countries, including the United States, the health threats plaguing mine workers aren’t so much a product of lax laws; regulatory conditions have somewhat improved in recent years. The problem, says Lewis, is systemic failure of enforcement:
This is the tragic subtext to many of these mine safety crises–from the chokehold of black lung in Appalachia to the Chinese mine explosions that regularly bury workers alive. The laws on the books aren’t applied on the ground, and workers are generally left at the mercy of the regulatory bodies that lack the staff and institutional capacity to hold employers accountable or prevent future hazards.
The claimant at the head of the compensation lawsuit that led to the breakthrough ruling, Thembekile Mankayi, died just before the court issued its decision in March 2011, as a result of respiratory illness attributed to his work at an underground mine near Johannesburg. Mankayi had toiled for Anglogold from 1979 to 1995, but although his career spanned through the fall of Apartheid, his body ultimately expired before he could see justice served in a democratic South Africa.
But some redemption may be on the horizon for many others sickened by the mines if the legal system finally provides them fair compensation. Under a neoliberal economic regime, South Africa’s mines remain haunted by the ghosts of Apartheid. But at least for some of the workers whose bodies bear the scars of that history, justice is no longer so far out of reach.
This blog originally appeared in Working In These Times on September 12, 2012. Reprinted with permission.
About the author: Michelle Chen work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.
New infographics from E-Training and Compliance and Safety show that as the U.S. budget for workplace safety continues to rise, the number of deaths dramatically falls. In 2010, the United States spent a then-high of $558 million dollars a year on workplace safety, and a record low of 4,600 workers died on the job. (Infographic after the jump).
The Obama administration has requested an increase in the Occupational Safety & Health Administration budget every year, but faced opposition from Republicans, who targeted it for steep cuts in the fiscal-year 2012 budget battles.
The charts also make the very interesting case that raising the retirement age above the current 67 could be disaster, as workers over the age of 65 suffer fatal workplace accidents at nearly three times the rate of those between 55 and 64.
Featured By: Compliance and Safety LLC Safety Training DVDs
This blog originally appeared in Working In These Times on August 23, 2012. Reprinted with permission.
About the Author: Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times. He can be reached at email@example.com.
The aroma of hot buttered popcorn evokes all sorts of childhood nostalgia, but for many workers, those savory vapors pose a modern industrial health hazard.
Evidence has been building over the years of a respiratory illness primarily afflicting factory workers exposed to the microwave-popcorn butter flavorant, diacetyl (DA). Now, researchers have discovered another potential hazard related to DA: long-term risk of Alzheimer’s disease.
Researchers with the University of Minnesota’s Center for Drug Design studied the effect of the “ubiquitous butter-?avoring agent” and detected an association with “long-term neurological toxicity,” particularly among industrial workers who are smothered in the stuff every day.
The federal government has in recent years urged the industry to limit potentially toxic workplace exposures to DA, but it has not defined an explicit regulatory exposure limit. Federal authorities have published advisories for employers to control DA exposure, but like many chemicals wafting across the country’s assembly lines and pervading our processed foods, DA (and similar chemical substitutes) are still amply used, with little restriction on behalf of public health.
Dr. Swati More, one of the study’s authors, says the findings should raise concerns that, in addition to posing respiratory risks, DA exposure “may lead to brain deterioration. The question that needs to be answered is, how much of diacetyl does one need to consume and for how long.”
Though the University of Minnesota study focuses on long-term effects related to beta-amyloid protein clumping in the brain, and was conducted at only the cellular level (not on humans), it adds to a growing body of research on the toxic impacts linked to DA exposure. Academic, media and government investigations have revealed both anecdotal and epidemiological evidence of “popcorn lung.”
The main occupational health issue surrounding popcorn lung, which has been acknowledged by the National Institute for Occupational Safety and Health (NIOSH), is bronchiolitis obliterans. (There is also some evidence of respiratory risk for extreme popcorn eaters.)
An extensive 2006 investigation by the Baltimore Sun’s Andrew Schneider revealed the potential health harms linked to DA exposure at workplaces. On top of the buttery scourge, which could impact many thousands nationwide, was the barrier of intimidation that workers felt under the pressure of their bosses:
The report notes that efforts to protect workers were constrained by the industry’s tight grip over the regulatory regime. DA was among the many chemicals that the FDA labeled as “Generally Regarded as Safe,” but according to the Sun, “[The FDA] took the word of a panel of scientists hired by the Flavor and Extract Manufacturing Association. Diacetyl was declared safe decades ago because the industry said it was safe, according to a spokesman for the FDA.”
This kind of bureaucratic opacity trickles down to the workers on the factory floor in a devastating way. A 2007 Washington Post story described a worker from a California flavoring factory, Irma Ortiz, who was crippled by the mysterious illness:
While the regulatory process on the federal level has stagnated, California has moved ahead by issuing a rule on occupational flavoring exposures.
Dr. Celeste Monforton, a professor at the Department of Environmental & Occupational Health at George Washington University, says the latest research on the popcorn-Alzheimer’s connection is not likely to spur further federal action on popcorn flavoring, as regulators are already focused (though still largely inactive) on the larger epidemiological studies on respiratory effects due to workplace exposures. But Monforton, who has worked with scientific colleagues to press for stronger regulation of DA, sees the results as further proof of how industrial chemicals shape people’s health in ways that researchers have only begun to explore.
“We have this regulatory system, or market system, that basically says, ‘We can expose people to whatever the hell we want, and then, if we find out something’s bad about it, some smart researchers out there will figure out what it’s going to do to you,’” Monforton says.
The diacetyl dilemma, she adds, “is probably one of the worst-best examples of how screwed up our worker protection system is.”
This blog originally appeared in Working In These Times on August 9, 2012. Reprinted with permission.
About the author: Michelle Chen work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.