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Employees' Rights to Sue Employers for Workplace Injuries Broadened by Supreme Court Cases

Fall 2003Cole Schotz DocketAttorney: Gerard M. Giordano

Recently, the New Jersey Supreme Court decided several cases that have the potential to impact employers’ liability to their employees. Each of these cases involves an employee’s right to sue his/her employer in a civil action for damages in excess of those provided by the Workers’ Compensation Act. The impact could be far-reaching because, in most instances, Workers’ Compensation laws have prohibited employees from pursuing the more lucrative option of suing their employer.

In 2002, the Supreme Court of New Jersey expanded the right of injured employees to sue their employers due to intentional misconduct. The Court found that to avoid the bar to civil suits of the Workers’ Compensation Act, an injured employee did not have to prove the employer had a subjective intent to cause the employee’s injury. Rather, an employee need only prove the employer engaged in actions substantially certain to cause employees harm. This trend was followed in two of the three Supreme Court decisions of 2003. 

While a court’s decisions to allow employees to sue their employer will be decided on a case-by-case basis and the totality of the facts, there are now certain factors, articulated by these recent decisions, that will be used by a court to assess whether to allow the case to proceed to trial. These factors include the following:

  • an employer’s act to disable a safety mechanism on a piece of equipment to enhance production;
  • prior citations by OSHA;
  • failure to correct the violations in the OSHA citations;
  • valid complaints to the employer made by employees, which were not acted on;
  • deception by the employer of OSHA officials; and
  • incidents where employees were almost injured or injured.

The existence of a combination of any of the above factors may be sufficient to allow an employee to successfully sue his/her employer.

These recent cases serve to expand the interpretation of an “intentional wrong” committed by an employer that will enable an employee to pursue a civil suit outside of the workers’ compensation administrative framework. After the more recent round of Supreme Court decisions, employees are no longer required to prove deceptions or cover-ups during OSHA inspections before the accident for the employee to succeed on his/her claims. Further, prior accidents do not have to be shown by an employee for the employer to be liable for damages beyond those provided in the Workers’ Compensation Act.

One of the three recent Supreme Court decisions favored employers in a limited context only. Injuries caused by consumer products used during work are not sufficient evidence of an employer’s “intentional wrongs.” This reasoning relies on a finding that workers, as consumers, are required to follow safety warnings on consumer products.

These recent decisions pose a serious threat to employers by opening the flood gates for civil suits. Because of the new test’s dependence on an analysis of the facts on a case-by-case basis, this new wave of lawsuits will survive summary judgment challenges and reach the trial phase of litigation. A more urgent concern is that an employer’s intentional misconduct is not covered by insurance. A standard employer’s liability insurance policy excludes coverage of intentional conduct by employers.

Accordingly, with an increase in civil suits and no insurance coverage, the ramifications of these recent decisions can be devastating to New Jersey employers.

In order to prevent a tragic injury in the workplace and the potential liability arising from such an event, employers must be proactive. Specifically, employers must develop an effective safety and health program to minimize such liability and a uniform program to deal with OSHA inspections. A continuing and effective occupational safety and health program consists of management commitment, worksite analysis, hazard prevention and control, and training. In essence, employers must make a commitment to protect employees in the workplace.

An effective program should include the following:

  • clearly stating an employer’s policy on safety and health issues;
  • establishing and communicating the goals of the safety program;
  • providing visible management involvement;
  • encouraging involvement by employees;
  • communicating responsibility for all aspects of the program to managers;
  • providing adequate authority and resources to implement the program;
  • holding managers accountable under these programs; and
  • reviewing operations at least annually.

In conjunction with these stated goals, employers must also assess the workplace on a regular basis and correct any unsafe working conditions. A reliable system must be in place for employees to notify management of hazardous conditions so employers can immediately implement an investigation and abatement of such conditions. Training employees on how to perform their job duties safely is also an essential element of an effective safety and health program.

In addition to being proactive, employers must establish a uniform procedure for reacting to an OSHA inspection. Facts uncovered during an OSHA inspection may be used to assist an employee in his/her case against an employer.

Employers must not in any way before, during or after an OSHA inspection try to deceive the OSHA inspector. Deception by the employer was a key factor the Supreme Court considered in allowing an employee to sue his employer. While an employer has an obligation to truthfully respond to any request from an OSHA inspector, the employer does not have an obligation to volunteer information not requested. In addition to the above, an employer must establish the following:

  1. Whether it will allow an inspection without a warrant;
  2. A designated individual who will be the contact person with the OSHA inspector and document what the OSHA inspector does during the inspection;
  3. A procedure on how this designated person will carry out documenting OSHA’s directives in the workplace;
  4. A program to assess the findings of the OSHA inspection and determine whether such findings will be complied with or contested; and
  5. A policy to assess when to involve an employer’s counsel in the inspection process.

Employers who are both proactive and have a policy in place on how to react to an OSHA inspection will not only reduce workplace injuries, but also minimize the likelihood of an employee being allowed to initiate a suit against his/her employer as a result of a workplace injury.

 

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