Anyone considering moving to Texas to find work may want to reconsider.

A recent hearing conducted jointly by two committees of the Texas House raises serious questions about worker safety in the Lone Star State. Related questions may make one question the official regard of workers in general, given news about advice given to employers regarding unemployment benefits.

Texas employers not required to carry workers comp insurance

According to a July 29 article in The Texas Tribune, the nation’s second-largest state is dead last in requiring employers to carry workers’ compensation insurance. That is to say, it’s the only state that allows all employers except “public entities” to choose whether to provide workers comp coverage:

“Texas is the only state that does not require employers to purchase workers’ compensation insurance. As such, 33 percent of Texas employers [in 2008] elect[ed] not to purchase such insurance; the committee sought information about whether that number had changed in the wake of the Entergy decision. Cathy DeWitt, vice-president for government affairs at the Texas Association of Business, testified that her group would not support making workers’ comp mandatory.”

To be fair, a slide show linked to from the article, from the state department of insurance indicates that 70 per cent of employers who elect not to subscribe to workers comp do cover employers through private insurance. Further, the presentation shows that the one-third of employers without workers comp is a declining number; in 1993, the number was 44 per cent.

Still, that’s a bunch of uncovered workers. Of course, without buying workers comp coverage, the employer leaves itself open to lawsuits–and some indicate employers indicate that’s the main reason they do buy coverage.

On the other hand, as the hearing shows, there’s plenty of room in the entire system for improvement.

House hearing focuses on serious workplace injuries

The pair of committees–Business and Industry, and Judiciary & Civil Jurisprudence–convened to examine “concerns over whether benefits in Texas were adequate in the case of serious workplace injuries,” concerns apparently fueled by reports coming from the BP tragedy in the Gulf.

“José Herrera, a worker badly burned by hot oil in an accident in a Citgo refinery in 2008, testified that his benefits (which will not last a lifetime) amounted to less than one-quarter of his former take-home pay and that his insurance has often delayed needed surgeries. ‘I’m in pain the day this happened to me, til now, for the rest of my life,’  Herrera told the committees.

“Some lawmakers voiced support for reviewing benefits allotted to badly injured workers. ‘I would hope somewhere along the line some subcommittee would look at the adequacy of benefits,” said state Rep. Jim Jackson, R-Carrollton.

Entergy ruling limits abilities to sue

“Herrera’s ability to sue for damages is severely constrained by a 2007 Texas Supreme Court decision. In Entergy Gulf States v. John Summers, the court ruled that plant owners can shield themselves from lawsuits by injured contract workers by purchasing workers’ compensation insurance, which pays workers a portion of their wages as well as medical bills in the event of injury. Contractors — the companies that actually employ the workers — are already able to shield themselves in this way; what was new was the extension of this right to companies that own the workplace.”

Another Tribune piece, also dated June 29, says, “The Entergy ruling startled many Texas officials and stirred anger among some lawmakers, who argued the legislative intent was ignored. But so far, efforts to change the law to get around the ruling have fallen short — the Texas Supreme Court reaffirmed its ruling last year — though another try is expected in the coming session.”

Audit finds more workers comp issues

Yet another July 29 piece, this in Texas Watchdog, reports more troubling details. After acknowledging long-standing features that traditionally have drawn workers to Texas (no state income tax, relatively available work, and a decent cost of living), the Watchdog notes that, “But if you hit some hard times, the place isn’t so hospitable, a recently released audit shows. In fact, one could say the state is in no hurry to police employers who might abuse the rights of employees injured or otherwise compromised.”

Citing a report from the state auditor’s office, the Watchdog says “pending workers’ comp enforcement cases have been open for an average of 467 days. That’s about a year and three months.

“Fifty-eight of those cases have been open since 2007, and one lingers from 2006, when oversight for worker’s comp moved from the dismantled Texas Worker’s Compensation Commission to the insurance department. The division of workers’ comp issues disciplinary orders when providers and carriers have not complied with the law.”

Among other findings:

• “The case log that Division management used to monitor workers’ compensation enforcement cases was not complete. Auditors identified 81 . . . cases that were not on . . . the log and 61 pending  . . . cases that the Division had assigned to [Division employees] whose employment had been terminated the prior calendar year.”
• “The Division did not consistently conduct supervisory reviews of staff’s work . . . . According to the Division, from March 2009 to March 2010, the Division conducted only two supervisory reviews of cases that were progressing to disposition.”
• The audit also found a reporting problem caused by physical layout: “This reporting structure makes it difficult for the Associate Commissioner . . . to monitor . . . enforcement cases.”
• Perhaps most disturbing, this finding regarding reduced penalties: “In addition, for two cases with the largest penalties assessed, the team leader . . . approved settlement amounts significantly less the amount recommended by the staff  attorneys assigned to the cases. However, there was no documentation justifying the reduced penalty amounts. According to Division procedures, settlement amounts and their correspondence should be documented.”

Skirting unemployment benefits

Now, what about those unemployment benefits? The Watchdog also cites the case of a high-ranking Texas Workforce Commission employee who has been giving some dubious advice during employer workshops. It comes from a July 7 story in the Houston Chronicle:

“Say you’re the boss and you’re going to fire one of your employees. Instead of booting the employee out the door, the Texas Workforce Commission recommends giving your employee the option to resign.

“Employees given that choice are more likely to conclude they aren’t eligible for benefits, said Jonathan Babiak, who spoke before 800 Houston area employers recently at a seminar sponsored by the Texas Workforce Commission.

“It’s not the employer’s obligation to correct that misunderstanding, said Babiak, [then-]deputy director of appellate services for the Texas Workforce Commission in Austin. If employees resign, he said, ‘chances are they won’t file a claim.’ “

The Chronicle also quotes an attorneys, speaking from appropriate disgust:

” ‘This is outrageous,’ Houston employment lawyer Margaret Harris said. ‘If you resign in lieu of termination, of course you’re entitled” to benefits.

” ‘This is an agent of the state of Texas telling employers how to defraud citizens of the state of Texas of a benefit to which they are lawfully entitled and that they very much need,’  said Harris, of Butler & Harris.”

The Watchdog was unable to get a statement from Babiak, but did manage to reach an attorney across the hall from him.

“Across the hall from Babiak at the Texas Workforce Commission sits the office of Ronald Congleton, the commissioner representing labor in Texas.

” ‘We certainly were not happy with those comments,’ said Bob Stewart, an attorney in Congleton’s office. ‘Counseling employers how to avoid paying unemployment? We aren’t in favor of that.’ “

The Watchdog also learned that Babiak is no longer a deputy director of appellate services.

Nope, he’s been transferred, apparently…

…to the human resources department.

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Have you, a friend or a loved one been injured on the job? Whether you’re merely seeking answers about your rights or believe a lawsuit may be necessary, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:

Workers compensation basics

Injury on the job

Filing a claim

Workplace safety in Texas is something that you should have a great interest in if you live and work in this state. This is the place where you probably spend at least 8 hours a day and 40 hours a week or more. This alone makes your safety in the workplace in Texas to be of great importance.

The place where you work is probably not the same as where your father worked a generation ago. The primary focus used to be on manufacturer’s production lines or moving materials within a shipping, receiving or storage area. Repetitive action or motion was what businesses depended on to produce a product.

The workplace of today has expanded far beyond the assembly line. The workplace of today also involves mobility. It now involves the highways and byways that crisscross the United States.

This is certainly true in Texas. In Texas, your workplace can be in a building or an office, but it can also be on the streets and highways of this great state.

What constitutes a workplace in Texas? How is it defined? A workplace is by definition, “a place where commerce is conducted.” This means that any place where work is conducted can be your workplace. Your workplace can be an office, building or motor vehicle.

What, then, is meant by workplace safety in Texas? Workplace safety refers to the working environment at the place where you work. Workplace safety encompasses all of the factors that impact your health, safety and well being while you work.

Workplace safety in Texas can involve a lot of things. It can include workplace violence, unsafe working conditions or processes, drug and alcohol abuse and environmental hazards.

Workplace safety is governed at the national level by the Occupational Safety and Health Administration (OSHA). The cornerstone of OSHA’s policies and regulations are seen in its three stated goals.

• Improve the safety and health for all workers, as evidenced by fewer hazards, reduced exposures, and fewer injuries, illnesses and fatalities

• Change workplace culture to increase employer and worker awareness of, commitment to and involvement in safety and health

• Secure public confidence through excellence in the development and delivery of OSHA’s programs and services.

The federal guidelines of OSHA are complemented by state regulations in Texas. In Texas, the Workers’ Health and Safety Division of the Texas Workers’ Compensation Commission provides assistance with workplace safety and health issues to employers, employees, and workers’ compensation insurance carriers and policyholders.

(more…)

The issue of workers compensation in Texas is important to you if you live and work in Texas, and you have been injured on your job or become ill due to the type of work that you do. In fact, you may be having problems and difficulties in getting compensated for that injury or illness at the present time.

It is well to keep in mind what workers compensation is. Workers compensation is a form of business insurance. It provides benefits in the form of medical coverage, income and rehabilitation to employees or their family who suffer injury, illness or death as a result of, or in the course of, their job.

This does not depend on whether the employee was at fault. If you were to lose your life at your place of employment these financial benefits may be given to your survivors or dependents. These benefits are yours or your dependents or survivors as a matter of “right.” Your employer cannot resort to any legal defense. In return for this, neither you and/or your dependents nor survivors can sue your employer for your injuries or death.

Workers compensation laws were established to reduce the need for litigation and to mitigate the requirement that injured workers had to prove that their injuries were the “fault” of their employer. Workers compensation laws have been around since Maryland enacted the first state law in 1902. The first federal law came in 1906. By 1949, all of the states had passed some kind of workers compensation laws.

Originally, these laws were known as “workman’s compensation.” Texas uses the term, “worker’s compensation” or “workman’s comp.”

When it comes to your safety and health at your workplace, although laws differ from state to state, they all must be in accordance with the Occupational Safety and Health Administration (OSHA). OSHA, at the national level, has the responsibility of making sure that your workplace is healthy and safe.

There is no national agency, however, that requires all employers to provide workers compensation benefits. The laws regarding workers compensation vary from state to state.

Workers compensation in Texas falls under the general heading of the Texas Department of Labor. More specifically, they are under the Division of Workers’ Compensation of the Texas Department of Insurance.

The Texas Workers’ Compensation Act of 2007 states that the Texas Department of Insurance, “is the state agency designated to oversee the workers’ compensation system of this state.” This act goes on to say that, “the division of workers’ compensation is established as a division within the Texas Department of Insurance to administer and operate the workers’ compensation system of this state as provided by this title.” In other words, the division of workers compensation is to administer the compensation system of Texas in accordance with the provisions of the Texas Workers’ Act of 2007.

In regard to these provisions, it is important for you to know and remember that workers’ compensation in Texas is elective. It is not mandatory or compulsory. This means that your employer can choose between providing workers’ compensation coverage or being subject to civil suit in the event of your injury on the job. The exceptions to this are governmental entities and construction contracts for governmental entities. In these cases, workers’ compensation insurance is required.

Workers compensation laws in Texas are based upon the theory that the burden of on-the-job injuries should be shifted from the worker to the employing business, and ultimately to the consuming public, as a cost of doing business. These laws protect and benefit you as an employee by providing simple, speedy, effective, and inexpensive relief, without regard to the fault of the employee, employer or third parties.

Texas employers who decide to provide workers compensation coverage for their employees have some important legal protections. One of the most important protections is immunity from most lawsuits by injured workers. If an employer has workers compensation, a lawsuit may go to court only after The Texas Department of Insurance’s (TDI) administrative dispute process has been exhausted.

In addition, TDI’s recommendations must be presented to the court. The evidence presented is limited to the issues in dispute, and resolved issues cannot be reintroduced. The employer’s insurance company pays attorneys’ fees and other defense costs.

In order to have these legal protections, employers have to provide workers compensation coverage to their employees in one of the following ways:

• Purchase a workers compensation insurance policy from an insurance company licensed by TDI to write this type of coverage in Texas
• Be certified by TDI to self-insure their workers’ compensation claims
• Join a self-insurance group that has received a certificate of approval from TDI
• Be a political subdivision, which may self-insure, buy coverage from insurance companies or enter into inter-local agreements with other political subdivisions providing for self-insurance.

Employers without workers’ compensation can be forced to pay punitive damages if they lose lawsuits arising from workplace accidents. They also lose certain common-law defenses. They are not allowed to defend themselves in court by arguing that:

• The injured worker’s negligence caused the injury
• The negligence of fellow employees caused the injury
• The injured worker knew of the danger and voluntarily accepted it.

There are several benefits that you are entitled to if your employer has workers compensation in Texas, and you are injured on the job. You are entitled to medical benefits with no time or monetary limits. You may also make the initial choice of the doctor that you want to use from a list of physicians prepared by the Workers’ Compensation Commission.

You are also entitled to disability benefits. Your surviving spouse or spouse and children can also be paid disability benefits in the event of your death on the job.

As mentioned at the beginning, you may be trying to get the compensation and benefits that you believe you are entitled to because of an injury at your job. You are having problems and difficulties with your employer.

You may need the services of a legal professional. You need an attorney who knows and specializes in employment law. You need an employment attorney.