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Printed from the Charlotte Observer - www.CharlotteObserver.com
Posted: Saturday, Sep. 13, 2008

Labor law fails to help workers

By Ames Alexander
Published in: Business
  • North Carolina's Retaliatory Employment Discrimination Act is unique, so it's hard to compare the program with others. But workers who file discrimination complaints with two federal offices often fare better.

    In fiscal year 2007, about 23 percent of those who filed complaints with the U.S. Equal Employment Opportunity Commission got favorable outcomes, compared with about 15 percent for the N.C. office that investigates REDA complaints. In another federal program, designed to protect whistleblowers from retaliation, about 22 percent of complainants had cases resolved in their favor.

    State Labor Department officials contend those comparisons are misleading because the other agencies differ in the types of complaints they investigate, the way they track statistics and the resources at their disposal.


  • In an investigation into working conditions in the poultry industry, The Observer found that state and federal OSHA agencies have made it easy for employers to ignore hazards that can kill and injure workers. Among the findings:

    Inspections at poultry plants nationwide have dropped to their lowest point in 15 years. In North Carolina, inspections dropped from 14 in 1999 to six in 2007.

    It has been a decade since OSHA fined a poultry plant for hazards likely to cause carpal tunnel syndrome, tendinitis or other musculoskeletal disorders common to the industry. In North Carolina, fines for serious violations by poultry plants average about $500 – less than half the national average.

    To read the full series, visit www.charlotteobserver.com/poultry.


  • The state's Retaliatory Employment Discrimination Act is aimed at protecting workers who have been fired or punished because they:

    Filed workers' compensation claims.

    Alerted officials about workplace health or safety problems.

    Initiated investigations of wage and overtime violations.

    Missed work due to service in the National Guard.

    Took time off work to cope with domestic violence.

    Underwent genetic testing, which could identify illnesses or physical traits that employers find undesirable.

    More details about the law and its enforcement can be found at www.nclabor.com/edb/edb.htm.


  • Related Images

    The day after Barbara Lynch told a supervisor at the Concord chicken plant that she would need surgery for a job-related shoulder injury, the employee badge she used to clock in stopped working.

    She recalls that she was directed to a personnel officer who told her she was being fired for missing too many workdays. Lynch suspects it happened for another reason: She'd been hurt on the job and had filed a workers' compensation claim.

    But when she alerted the N.C. office that's supposed to investigate such complaints, she said, officials dismissed her case without interviewing her.

    Under North Carolina's Retaliatory Employment Discrimination Act, employers are prohibited from firing or punishing employees for filing a worker's compensation claim or complaining about unsafe working conditions.

    But an Observer investigation has found that few who seek help under the program wind up getting it.

    Of the roughly 800 people who file REDA complaints each year, about 1 percent get their jobs back. North Carolina has not taken a REDA case to court on behalf of a worker in seven years. And investigators sometimes dismiss cases without interviewing workers.

    In stories published this year, the Observer showed how weak government enforcement has allowed poultry processors to escape serious consequences when they ignore hazards that can kill or injure workers. Many workers told the newspaper that their employers intimidated or fired workers who were hurt on the job.

    Nearly 100 poultry workers filed REDA complaints from 1997 through 2007, but only seven got settlements or rulings in their favor as a result, the Observer found in a review of state records.

    Despite significant budget cuts, state Labor Department officials say they've done much in recent years to improve the program. They have brokered more settlements between workers and employers and all but eliminated a once-massive case backlog.

    The program has a long history of failing workers. Employees who complained of retaliation in the 1990s were no more likely to get satisfaction than they are today.

    But critics say that under N.C. Labor Commissioner Cherie Berry, the department has relied more on negotiating with employers and has become less willing to fight for workers.

    “She is pro-business,” said Bob Bollinger, a Charlotte lawyer who frequently represents employees in workers' compensation cases. “Her worldview is not one that is favorable to employees or labor.”

    The law's beginnings

    North Carolina's anti-retaliation law has its roots in disaster.

    On Sept. 3, 1991, 25 workers died when a fire erupted inside the Imperial Food Products plant in Hamlet. Workers were trapped behind doors that the plant's owner had ordered locked to prevent the theft of chicken nuggets.

    After the Hamlet fire, a legislative panel seeking to strengthen workplace protections found there was little to shield N.C. workers from retaliation by employers.

    The General Assembly responded in 1992 with a law that prohibited N.C. employers from punishing employees for filing workers' compensation claims, formally complaining about unsafe working conditions, or initiating investigations into wage and overtime violations.

    Hailed as a crucial piece of protection for N.C. workers, the law gave victims the right to recover their jobs, lost wages or other economic losses suffered as a result of retaliation.

    While many employees nationwide are covered by such laws, REDA gave N.C. workers something most states don't have: a staff of investigators charged with looking into retaliation complaints.

    Toby Fitch, a former lawmaker who championed the bill, said the rationale was simple: “If I work for a company and I get hurt on the job, I should not get fired.”

    All too often, that's precisely what happens, workers' comp lawyers say. But many workers don't file complaints because they're unaware of their rights or fear retribution, lawyers say.

    “I see retaliation every single day in the work force,” said Charlotte lawyer Mark Sumwalt, who has represented hundreds of clients who alleged retaliation after filing workers' comp claims. “ … People get hurt and then fired the next day. It's just that blatant.”

    Lawyers who represent employers say retaliation is rare, and that workers are usually fired for reasons that have nothing to do with their injuries.

    In the Lynch case, for example, employer Perdue Farms argued that her 2004 dismissal was unrelated to her workers' compensation claim.

    Lynch acknowledged that she missed work on more than 15 occasions during her 11/2-year tenure but said that was usually because work-related injuries made it hard to do her job.

    The company fired her, she said, only after it became clear that her injuries would prove costly to Perdue. And she questions state investigators' decision to dismiss her complaint without talking to her.

    “I really don't think (state officials) do enough,” she said. “The employee is at the mercy of the company they're working with.”

    A bumpy start

    In the program's early years, officials with the Employment Discrimination Bureau conducted in-depth investigations, routinely visiting workers and employers for extensive interviews.

    But as the bureau's eight investigators juggled dozens of cases each, a backlog mounted. By 1998, the number of unresolved cases approached 2,000. Often, it took more than a year for a case to be assigned to an investigator.

    Then, as today, investigators rarely found the evidence they felt was needed to prove discrimination.

    Harry Payne, a Democrat who served as N.C. labor commissioner from 1993 through 2000, said competing demands on the state budget deprived the employment discrimination bureau of the resources it needed.

    “We just didn't have the resources to pursue cases on more than just a basic level,” Payne said.

    In 2000, Payne's final year in office, investigators threw out about 80 percent of complaints after deciding that workers had insufficient evidence or failed to provide information. In 14 percent of the cases, workers either settled with employers or won a favorable ruling from the state, which would make it easier for them to prevail in court.

    On occasion, Payne's Labor Department took employers to court when they refused to settle cases.

    The Berry years

    After Cherie Berry was elected labor commissioner in 2000, she came to office with a different approach. A former co-owner of a company that made spark plug wires, she had campaigned on a promise to make the Labor Department less intrusive.

    She summed up her political philosophy during the campaign with the quote: “The government that governs best governs least.”

    In response to a budget crunch, the discrimination bureau cut back on travel and training. This allowed it to retain staff, says Skip Easterly, who headed the office from the mid-1990s to 2006.

    The bureau began asking workers and employers to fill out written questionnaires instead of conducting in-person interviews. Investigations became less thorough.

    “Frequently I felt if I had some more dollars to put more people on the road, we could do a better job,” Easterly said. “… It seems like you get better information when you can look into the eyes of the person you're talking to.”

    The bureau's budget was about $618,000 in 2007, down nearly 25 percent since 1999, when adjusted for inflation.

    Of 12 complaints examined in-depth by the Observer, filed from 2002 to 2007, investigators dismissed four without interviewing the complaining workers.

    Labor officials say they give workers “every opportunity to present evidence supporting their claims.”

    Kathleen Sumner, a Greensboro lawyer who has represented thousands of injured workers over the past two decades, says she believes politics has weakened the employment discrimination bureau.

    She says investigators are hard-working and conscientious. But soon after Berry took office, she said, Easterly confided that he and his colleagues had been instructed to “back down” from aggressively pursuing REDA violations.

    Easterly told the Observer said he recalls no such mandate, though he acknowledged that budget cuts made it harder for his office to do its work. “They didn't say don't enforce the law,” he said. “They just didn't give me the money to enforce it.”

    Under Berry's leadership, the department has worked harder to negotiate with companies accused of retaliation. Settlements have increased from about 9 percent of all cases in 2000 to 14 percent in 2007.

    By streamlining the investigative process, labor officials say, the bureau has also managed to clear most of the case backlog.

    “Overall, our staff does a solid job enforcing REDA,” officials wrote in response to questions from the Observer.

    But critics say Berry's department has been less willing to stand up for workers.

    Today, when employers and workers don't reach settlements, the employment discrimination bureau sides with workers less than 1 percent of the time – down from 5 percent in 2000.

    The Labor Department has not taken a REDA case to court on behalf of a worker since 2001.

    Few complaining workers get their jobs back. Since 2001, about nine of the roughly 800 workers who file such complaints each year have been reinstated.

    The average settlement in recent years has been for roughly $1,500.

    Labor Department officials say the number of rehires and average settlement amounts under Berry's leadership exceed those of the Payne administration.

    Berry, a Republican, is running for reelection.

    A law with few teeth

    The department would not allow the Observer to interview REDA investigators.

    Investigators often lack the evidence needed to prove retaliation, current and former labor officials say. In one case reviewed by the Observer, a worker was fired when he missed several weeks of work – even after a doctor had cleared him to return to the job following a work-related injury.

    A source who knows how bureau investigators work said it's easier for them to rule that a case has no merit. “There are many employers who fire people on the basis of workers' comp,” the source said. “But proving it is another thing.”

    By law, the N.C. labor commissioner can go to court on behalf of employees who are wrongly fired. But the state has litigated just four cases in the past decade.

    John Hoomani, general counsel for the N.C. Labor Department, said Berry has placed great emphasis on the early resolution and settlement of cases. That saves time and money, state officials say.

    “Commissioner Berry believes that it is in the best interests of both the employee and the employer to avoid lengthy investigations and litigation whenever possible,” Hoomani wrote in an email to the Observer.

    Others, however, worry that the approach has made it too easy for employers to fire injured workers.

    Charles Jeffress, who headed N.C. OSHA in the mid-1990s and federal OSHA in the late 1990s, said that while it makes sense to settle many cases, the state sometimes needs to go to court on behalf of workers.

    “If the state is settling everything, then the state isn't standing up sufficiently for workers,” he said. “Not every employer is going to be reasonable. … Sometimes you have to go to court. It shows that the Labor Department will stand up on behalf of employees.”

    The U.S. Equal Employment Opportunity Commission, which unlike North Carolina has a staff dedicated to litigating such cases, typically goes to court on behalf of N.C. complainants about 15 times a year. Fitch, the former N.C. lawmaker, said he's disappointed the REDA law has failed to provide workers the protection he envisioned when he helped write it in 1992.

    “It's a law on the books, but what teeth does it have? Evidently not much,” he said. “… The workers have never really gotten their due.”

    Staff writer Kerry Hall contributed.

    Ames Alexander: 704-358-5060

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