Texas AFL-CIO http://www.texasaflcio.org/rickm.html
Court Issues Invitation to Fire Injured Workers
By Rick Levy
Legal Director, Texas AFL-CIO
The labor movement has known for years that in the Texas Supreme Court's view of job-related laws, money talks and workers walk.
The same court that upheld the constitutionality of a Texas Workers' Compensation Act that arbitrarily decimates injured workers' benefits has now ruled that employers can avoid the requirements of workers comp altogether by declining the insurance and firing workers who file claims seeking compensation for workplace injuries.
Fire at Will
In Texas Mexican Railroad v. Bouchet, the high civil court radically altered workers' comp as we have known it for 80 years, issuing an engraved invitation for employers to drop coverage, or in the term used by insurance pros, "go bare."
The court said a company that does not carry Workers' Compensation insurance is free to fire an employee who dares to seek legal relief for a workplace injury. The employee can still sue the company in court, where he or she will be greeted by corporate lawyers who wage a war of attrition that makes litigation prohibitively expensive and fruitless for most folks who are hurt on the job. Of course, that was the reason legislatures around the country enacted Workers' Comp to begin with, but instead of serving justice, this decision serves the political warchests of justices.
Lawrence Bouchet first injured his back on the job in 1987. Like any good worker, he reported his injury immediately. He was able to work for a while, but by 1990, his injury worsened and he underwent surgery. When he filed suit to recover his medical expenses, the company fired him.
Disposable Human Resources
This kind of retaliatory discharge has long been considered improper. Legal remedies for unfair discriminatory firings can include back pay, reinstatement and triple damages for the discharged worker. The Texas Legislature recently reaffirmed this policy, rewriting state law (Section 451.001 of the Labor Code) to prevent most retaliatory firings. A Texas appeals court and a federal court had affirmed that Bouchet was entitled to protection from a retaliatory discharge.
But the Texas Supreme Court, seemingly always looking to advance management and big insurance initiatives, saw matters differently. It read a single clause in the law to limit claims of discriminatory discharge to Workers' Comp cases. Because the railroad company that employed Bouchet did not subscribe to Workers' Comp, the court ruled Bouchet could be fired for any reason or no reason.
What to Do
This decision will encourage employers to drop participation in Workers' Comp and fire workers who are injured on the job. The Supreme Court has left Texas workers virtually no state program or law under which they might effectively seek compensation for workplace injuries. The average employee will now have to rely on his employer's moral conscience when that employer drop Workers' Comp coverage.
Morality aside, the rational business decision for employers -- that is, what shareholders will demand to maximize profit -- is now clear. On the one hand, employers can pay premiums for Workers' Comp insurance and accept the notion that workers who are injured cannot lose their jobs for filing a claim. On the other hand, employers can pay no premiums, fire a worker who is injured and seeks assistance from the company, and use superior legal power to starve the injury victim out of court.
Make no mistake. This is the decision of an activist court, not a court that styles itself as an impartial interpreter of legislation. The Legislature has historically supported a Workers' Comp system that cannot be corrupted by employers who threaten to fire claimants. Only in such a system can the state identify employers who cut corners and maintain unsafe workplaces and only in such a system can injured workers seek benefits without fear.
The Bouchet decision is yet another example of why the election of Supreme Court justices affects workers every day. When the large majority of justices draw most of their financial support from the insurance companies, employers and defense lawyers, it is easy to see which direction they will take their decisions. Working people must galvanize themselves so they can talk louder than money.
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