NFL Settlement Raises Legal Question

What Did the NFL Know?

The National Football League Thursday agreed to pay $765 million over 20 years to settle claims that it hid evidence about the dangers of head trauma suffered by NFL players.

Should that end the matter? Of course not. 

NFL players are employees. 

Under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.”

 Courts have interpreted OSHA’s general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard.

 The NFL owners had a legal duty to protect the players when they became aware (or should have become aware) of the devastating brain damage being suffered by their players on the field. At that point, the NFL and NFL team owners should have acted to “abate the hazard.”  Professional football is entertainment and there are many feasible ways the NFL could have made the game safer.   

As a result of the settlement, the NFL may be able to avoid the legal discovery process which would have included the deposition of  league officials and doctors about what they knew and when they knew it.  The settlement, however, does not prevent federal authorities from looking into whether  the NFL recognized the risks and still subjected players to serious physical harm. 

To allow the NFL to bury this matter under a rug through a private legal settlement would be akin to the federal government ignoring coal mine owners in West Virginia who failed to properly tunnel or vent a coal mine that caved in and resulted in  catastrophic loss of life. 

 Workplace Fatalities

The U.S. Department of Labor (DOL) reported last week that  4,383 workers died from work-related injuries in 2012 – that’s  3.2 workers  per 100,000 full-time equivalent workers. In a recent press release. DOL Secretary Thomas Perez said: “No worker should lose their life for a paycheck.”

The DOL’s list of  workplace fatality statistics probably didn’t include Kansas City Chiefs linebacker Jovan Belcher who fatally shot his girlfriend last December and then drove to Arrowhead Stadium and committed suicide in front of his coach and general manager. Or Junior Seau, a retired linebacker for the New England Patriots who fatally shot himself in the chest in at his California home last May.

 The deaths of Belcher and Seau were the latest to raise an alarm about head trauma suffered by  players on the football field. A  2012 study by Boston University School of Medicine of 35 former football players (33 had played for the NFL) found that 34 showed signs of brain disease before their deaths.  Dozens of athletes donated their brains to be studied by the medical school, which found a link between head injuries suffered in the heavy-impact sport and degenerative brain disease.

The Minimum Wage & Women

Women 60 % of minimum wage earners

I was waiting at the supermarket for a short, overweight woman wearing tight blue pedal-pushers to self-bag a mountain of groceries.  

The cashier, a woman in her mid-30s with pulled back hair and dark eye makeup, could not ring up my groceries until there was room on the counter.

 “Why is it so busy?” I asked.

“It’s the first of the month. Food stamps,” said the cashier..

I noticed her eye makeup had migrated  below her eyes forming a shadow. She was tired.

 “Have you been going at this fevered pace all day?” I asked.

“Yeah and this is my second job,” she said. “I’ll put in sixteen hours today.”

Suddenly she brightened. “But I am looking forward to taking a week’s vacation in ten days –  from one job, anyway.  It’s the first vacation I’ve had in years. I’ll find out what it feels like to do nothing again.”

Nothing?

Since when is having only one job a vacation? 

 Minimum Wage

The U.S. Department of Labor is engaged in a “myth busting” informational campaign regarding increasing the federal minimum wage – which is now  $7.25 an hour.

Most people think that it is mostly teenagers who earn the mininim wage. That’s wrong.

 A cashier who works 16 hours a day and considers having just one job a “vacation” is more representative of the minimum wage worker than a high school student earning pocket change.

According to DOL, 60 percent of those earning the minimum wage are women – fewer than 20 percent  are teenagers. And minimum wage workers brought home 46 percent of their household’s wage and salary income in 2011.

The minimum wage has not increased since 2009 and it has declined by 7.3 percent in buying power.

Hardworking Americans earning the minimum wage cannot afford to buy basic necessities and support a family –  never mind  health benefits and a pension.  Many Americans are working multiple jobs just to keep out of poverty.

There is a lot of ignorance about the impact of raising the minimum wage. The DOL and the Economic Policy Institute say that raising the minimum wage does not hurt small business or economic growth. Check out the following DOL graphic:

 

MWRaise-graphic1 

Good Jobs Replaced with Temp Work

One sector of the labor market is booming but there isn’t much cause for celebration.

 The U.S. Department of Labor recently reported that the number of  “temps”  in the United States has jumped more than 50% since the recession “officially” ended four years ago to nearly 2.7 million — the largest number since 1990.

Temps are temporary workers who typically receive low pay, few  (if any) benefits and scant job security.  Needless to say, temps are seldom in a position to demand decent working conditions and, of course,  don’t qualify for unemployment compensation when they are dumped by the employer.

The number of Americans in the tenuous temp workforce rises to almost 17 million when you factor in freelancers, contract workers and consultants. That’s about 12 percent of the labor force.

Careerbuilder, the internet jobs web site, reports there are 17 job areas where temp work is growing fastest, including team assemblers, office clerks, home health aides, and maintenance and repair workers.

Somewhat surprisingly, the CareerBuilder list includes some sectors that rarely used temps in the past, including computer programs, accountants and auditors, registered nurses, electricians and business operations specialists.

 An Associated Press survey of 37 economists in May found that three-quarters thought the increased use of temps and contract workers represented a longstanding trend.

Last year, this blog reported on a study by the Center for Economic and Policy Research (CEPR) that found fewer than a quarter of American workers have a “good job” today compared to the past, largely because of policy decisions that have undercut labor.

 According to the CEPR study,  Where Have All the Good Jobs Gone, a good job is defined as one that pays at least $37,000 per year, has employer-provided health insurance and an employer-sponsored retirement plan.

 The CETR blamed the decline in good jobs on policy decisions, rooted in politics, that have resulted in a drastic loss of workers’ bargaining power and the restructuring of the labor market since the end of the 1970s.

Readers are encouraged to visit ProPublica, a web site featuring journalism in the public interest, to read more about the treatment of temps in American workforce.

Wage Theft Goes Unpunished

If you rob a liquor store and get caught, you may serve time in prison.

But nothing much happens when an unscrupulous employer steals money from an employee’s paycheck.

That’s the sad conclusion of a national report recently released by the Progressive States Network (PSN), entitled,  Where Theft is Legal: Mapping Wage Theft Laws in the 50 States.

The PSN report finds that state laws are grossly inadequate to combat the epidemic of “wage theft” by unscrupulous employers in the United States. Some states levy no fines at all for wage theft, according to the report, while most others invoke penalties smaller than a speed­ing ticket.

 Wage theft is the systemic non-payment of wages that owed to workers.

The PSN estimates that more than 60% of low-wage workers suffer wage violations each week. On average, the PSN reports, low-wage workers lose $51 per week to wage theft, or $2,634 per year.  For low-wage workers, that amounts to 15% of their annual income, at average earnings of $17,616 per year.

The problem also costs states millions of dollars each year in lost revenue.  Yet, according to PSN, the vast majority of states have few, if any, protections against wage theft.   “Our comprehensive survey of state laws … reveals that 44 of the 50 states (plus Washington, DC) do not receive passing grades on combat­ing the wage theft epidemic,” states the PSN report.

Even states that ranked highly in the PSN survey –  New York and Massachusetts –  received barely passing grades.

Two states — Alabama and Mississippi — scored zero points in the survey, indicating they essentially offer workers no protection at all against wage theft.

Wage theft typically occurs when employers misclassify workers as exempt employees under federal or state wage and hour laws to avoid paying overtime. For example, a cashier may be called a manager even though he or she has no management duties.. Or employers fail to pay workers the minimum wage or cheat them of earned benefits.  Subcontracting employers often try to shirk their responsibilities under wage-and-hour law by claiming that a temp agency or another inter­mediary is actually the sole employer responsible for wage payment.

The PSN reports the ability of the federal and state governments to enforce wage and hour laws has sharply declined in recent years.

The U.S. De­partment of Labor (USDOL) has only one enforcement agent for every 141,000 workers, down from one per 11,000 workers in 1941.  The PSN reports that state revenue shortfalls and layoffs have resulted in less than 15% of the enforcement coverage offered by state agencies several decades ago.

In 2008, the National Employment Law Project (NELP) and a team of advocates, policy groups, and academic research centers surveyed workers in Chicago, Los Angeles and New York and  found:

  •  64% of low-wage workers experience wage theft each week.
  • 26% are paid under the legal minimum wage.
  • 76% of workers owed overtime go unpaid or underpaid.

Since the NELP report, New York passed the Wage Theft Prevention Act of 2010, which is considered to be the strongest state law in the country, with beefed up anti-retaliation provisions, requirements for notification, and a remedy that allows workers to recover damages.

Founded in 2005, the PSN provides coordinated research and strategic advocacy tools to state legislators and their staffs, empowering these decision-makers to adopt progressive policies.