Time for leaders to do something about job safety

By Zak Zatezalo | Jan 15, 2015

WHEELING – In November, West Virginia voters sent a message for change, seating a Republican legislative majority for the first time in 80 years.

Candidates on both sides of the aisle ran big on jobs. Candidates that campaigned on staunch opposition to the EPA's efforts to mitigate the impact of climate change resonated with voters that believe that the President and his supporters have waged a war on coal, and voters resoundingly placed their trust in the Republican Party this election season to honor their campaign promises of retaining and adding good jobs here in West Virginia.

When it comes to a good job, I think we can all agree that, at a minimum, a good job has to be a safe job. The real job creators, the ones worth voting for, understand this and fight hard to uphold laws designed to ensure a safe working environment. One of the many things that makes me proud to be a West Virginian is the way West Virginia has historically stood up for workplace safety.

Among the most important ways West Virginia has helped protect its workforce is by enacting W.Va. Code § 23-4-2, which allows a jury to determine the value of the harms and losses to an employee who is hurt on the job because an employer knowingly risked that employee's safety.

Ordinarily, state workers' compensation laws provide employers with immunity from civil lawsuits by injured workers. In exchange for that immunity the injured worker simply has to be hurt "on the job," without having to prove an employer's fault, to receive workers' compensation benefits.

However, a number of states have taken measures over the years to strip an employer of its immunity and hold the employer responsible for the entirety of the harms and losses an employee sustains when the employer acts with intent to harm the employee or forces an employee to act in violation of a specific safety law. Under those scenarios, some states allow an employee to seek compensation for harms and losses, like past and future pain and suffering, mental and emotional anguish and the death of a loved one, that are ordinarily unavailable or limited under worker's compensation law.

Deliberate intent laws protect a worker's fundamental right to a safe job by deterring employers from pressuring workers to engage in unsafe conduct and making the employers pay full freight if they maim or kill a worker because they cut safety corners.

Deliberate intent laws are a hugely important mechanism to ensure a safe workplace, because OSHA fines, the only other mechanism in place to address unsafe workplaces, are typically too small to prompt any meaningful reform. On the other hand, being made to answer for the entire scope of the harms and losses to an employee can prove much costlier to those employers willing to risk a worker's safety by knowingly placing him in harm's way.

So, unsurprisingly, the past couple of decades have seen a highly organized, concerted, nationwide effort by Corporate America to eliminate state's deliberate intent laws. Ohio, for instance, has succumbed to a barrage of lobbying efforts over the years that have gutted Ohio's deliberate intent law and effectively repealed it. Although deliberate intent remains on the books in Ohio, "reform" efforts have rendered it nothing more than a paper tiger in terms of deterring unscrupulous employer behavior.

Currently, in order to have the full measure of the harms and losses to an injured worker valued by a jury, Ohio requires an employee to prove, by the much higher legal standard of clear and convincing evidence, that the employer had an actual, specific intent to hurt or kill a worker.

Unless your boss is full-blown psychopath who is specifically gunning for you in the workplace, this is a practically impossible standard for employees to meet, and the current law provides no true incentive for employers to closely adhere to safety laws.

West Virginia's deliberate intent law has been subjected to the same type of "reform" efforts over the last decade, but we have successfully resisted such efforts, thus far, thanks to legislators that have remained steadfast and worked hard to protect the fundamental right of every employee to a safe workplace.

But you better believe the West Virginia legislature will continue to be pressured to repeal West Virginia's deliberate intent law, likely with a renewed vigor now that corporate lobbyists and organizations, like the notorious Koch brothers, have turned West Virginia red.

Safe jobs allow us to raise families. Safe jobs allow us to be productive, supportive members of our communities. Safe jobs give us the freedom to grown and learn so we can be the best employees we can be. Safe jobs give us pride in ourselves and in our great State. Those things quickly evaporate for workers seriously injured because their employer knowingly put them in harm's way.

Politicians who are really about job creation recognize this reality, and will do everything they can to uphold West Virginia's deliberate intent law. For all of you voters who chose candidates on the basis of their position on jobs, keep a close eye on their approach to West Virginia's deliberate intent law.

That is the litmus test that will reveal whether your elected official actually walks the walk. Elected officials that don't fully support your right to a safe workplace don't deserve your support at the polls next time.

Zatezalo is an attorney with Bordas & Bordas.

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