NESRI Media Center

Workers' Comp Hub Newsletter, Summer 2017

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Publication Date: 
August 8, 2017

In this edition of the Workers' Comp Hub Newsletter, we focus on how a broken regulatory system has enabled a culture of systematic retaliation and fear to take hold in low-wage workplaces, and how affected workers are leading efforts to restore rule of law and protect their rights. Read that story below, and check out the full newsletter for more news on threats to workers' rights under Trump's aggressive anti-immigrant policies, OSHA's worrisome delays on several important health and safety rules, and significant state legislation on workers' comp and universal healthcare.

 

Ending Retaliation and Challenging the "Business of Fear"

new report from Raise the Floor Alliance and National Economic and Social Rights Initiative (NESRI) documents widespread employer intimidation and retaliation against Illinois workers, identifies why the state’s legal system has failed to protect workers and guarantee access to workers' comp, and lays out a plan to empower workers to restore justice.

Low-wage workers face widespread abuses. Dangerous conditions, injuries, denial of workers' comp, wage theft, discrimination, sexual harassment, and suppression of worker organizing are all rampant. In one seminal survey (the 2008 Unregulated Work Survey Project), more than 20% of low-wage Illinois workers reported retaliation for reporting an on-the-job injury, and a mere 3% were able to access workers’ comp benefits for a severe injury.

Through the report, Raise the Floor’s workers’ center members draw attention to a wide range of dangers and abuses in many of Illinois’ low-wage industries. They also highlight how employers use intimidation and retaliation—including threats like reduced pay, firing, and deportation—to keep workers silent about these abuses and to prevent them from filing for workers' comp.

How has this culture of fear and abuse gotten so out of hand? The downward spiral of unacceptable working conditions, employer intimidation, and the resulting silence of threatened workers is linked to inadequate legal protections and regulation.

As in every state, Illinois' anti-retaliatory laws are made up of a patchwork of confusing and often arbitrary specifications about what is protected and what is not. Employers deploy a range of retaliation tactics, ranging from changing work duties or reducing hours to firing workers or calling immigration authorities. These types of actions are prohibited under wage, non-discrimination, and health and safety laws (though they are often ignored). Illinois' workers' comp law, however, only protects an injured worker from being fired for filing a workers’ comp claim, but not from any other retaliatory measures an employer may take.

The regulatory system that is supposed to oversee workplace conditions is similarly fragmented. In addition to the courts, there are at least six separate oversight and enforcement bodies in Illinois governing wage theft, health and safety hazards, discrimination and sexual harassment, and violations of the right to organize. Most of these agencies simply respond to worker complaints, taking no proactive efforts to monitor or investigate violations of workers’ rights. Of those that do take agency-driven action, the ratio of workers to regulators is shockingly inadequate. At OSHA and state occupational health agencies, which enforce workplace health and safety standards, there is only one full-time employee for every 63,100 workers. It would take inspectors over 100 years to inspect every American workplace.

What’s more, the legal process makes it exceedingly difficult for workers to prove their employer has retaliated against them. Workers face a high burden of proof to demonstrate that an employer’s actions were in response to their own claim or complaint. Judges usually give employers the benefit of the doubt, meaning most can get off the hook simply by claiming their actions were unrelated to the worker voicing concerns. In addition, systemic delays and procedural difficulties make the process costly for workers, who already have limited time and resources. Rather than win or lose, many workers are simply “processed out the door,” says a long-time Illinois attorney. Workers also have to find representation for cases that don’t always promise to compensate attorneys well, even if the outcome is successful.

In the rare instances when a worker’s retaliation claim is successful, the payoff is often paltry. Winning a case usually means receiving back pay and being reemployed. This rarely costs employers more than they already owed harmed workers. Even this cost, however, is unimposed in cases involving undocumented workers. When penalties are imposed, which is rare, they are low and unrelated to corrective action, meaning there is little to encourage employer compliance.

Without adequate protections that allow workers to speak up when they see a safety hazard or have their rights abused, conditions themselves worsen, employers are not held accountable, and already at-risk workers become more vulnerable. So what is to be done?

The path to more just workplaces starts with workers themselves. The report emphasizes that “workers are in a unique position to monitor violations of their own rights at work and be the frontline in improving conditions.” To empower worker-led action and hold Illinois employers accountable, the report makes several recommendations for legal reforms. These include broad legal protections and fair assumptions, including a burden of proof that ensures all workers reliable access to relief in case of retaliation; a path to justice that meets workers' needs, including timely resolution of their complaints; and legal penalties and other enforcement measures that effectively deter employers from delaying and denying justice for workers.

To learn more, check out the full report here.