Workers' Compensation and Employee Protection Laws in a Nutshell

by Hood, Jack B.; Hardy, Benjamin A., Jr.; Lewis, Harold S., Jr.

• ISBN13: 9780314226457
• ISBN10: 0314226451
• Edition: 3rd
• Format: Paperback
• Copyright: 1999-07-01
• Publisher: West Group

Table of Contents

Preface	v
Table of Cases	xxiii
PART 1. HISTORICAL BACKGROUND OF COMPENSATION LEGISLATION
Employment Related Actions and Legislation	1	(22)
Employee's Common--Law Remedies	1	(4)
Fellow--Servant Doctrine	2	(2)
Contributory Negligence	4	(1)
Assumption of Risk	4	(1)
Employers' Liability Acts	5	(1)
European Compensation Legislation	6	(2)
Germany	6	(1)
Great Britain	7	(1)
State Compensation Acts	8	(4)
Maryland	8	(1)
Montana	9	(1)
Massachusetts	9	(1)
New York	9	(2)
Florida	11	(1)
Federal Legislation	12	(11)
Federal Employees' Compensation Act	12	(2)
Federal Employers' Liability Act	14	(2)
The Jones Act	16	(2)
Longshore and Harbor Workers' Compensation Act	18	(4)
Federal Black Lung Benefits Legislation	22	(1)
PART 2. THE LAW OF WORKERS' COMPENSATION
Theories and Policies of Workers' Compensation	23	(10)
Constitutional Theories	23	(4)
Freedom of Contract	24	(1)
Election	24	(1)
Presumptive Coverage	25	(1)
Compulsory Coverage	26	(1)
Exclusiveness of Remedy	26	(1)
Social and Economic Policies	27	(4)
Employee--Employer ``Bargain''	27	(1)
Industrial Burden for Injuries and Death	28	(1)
Medical Loss and Wage Loss	28	(1)
Social Insurance	29	(1)
Economic Appraisal	30	(1)
Liberal Construction of Compensation Acts	31	(2)
Workers' Compensation and the Law of Torts	33	(8)
Common Law and Statutory Actions	33	(1)
The Struggle for Coverage and Non--Coverage	33	(8)
Co--Employees	34	(1)
Dual Capacity Employers	35	(1)
Property Actions	35	(1)
Negligent Inspectors	36	(1)
Bad Faith	36	(1)
Products Liability	37	(1)
Physicians	37	(1)
Intentional Torts of Employers	38	(1)
Nonphysical Torts	39	(1)
Retaliatory Discharge	39	(2)
The Employee--Employer Relationship	41	(16)
Employees and Employers Generally	41	(1)
Employees	42	(9)
Casual Employees	43	(1)
Agricultural Employees	43	(1)
Domestic Employees	44	(1)
Loaned Employees	44	(1)
State and Municipal Employees	45	(1)
Federal Employees	46	(1)
Participation of Employees in Enterprise	47	(1)
Volunteers	48	(1)
Aliens	48	(1)
Minors	49	(1)
Illegal Employments	49	(1)
Independent Contractors	50	(1)
Professional Employees	51	(1)
Employers Generally	51	(6)
Minimum Number of Employees	52	(1)
General and Special Employers	52	(1)
Subcontractors and Statutory Employers	53	(1)
Charitable Organizations	54	(1)
Concurrent Employers	54	(1)
Successive Employers	55	(2)
The Coverage Formula---Necessity for a ``Personal Injury by Accident Arising Out of and in the Course of Employment''	57	(28)
The Coverage Inquiry	57	(3)
The ``Arising Out Of'' Concept	60	(8)
The Five Basic Risk Doctrines	61	(1)
Proximate Cause	61	(1)
Peculiar Risk	61	(1)
Increased Risk	62	(1)
Actual Risk	62	(1)
Positional Risk	63	(1)
A Miscellany of Risks	63	(1)
Acts of God	63	(1)
Street Risk Doctrine	63	(1)
Imported Dangers Doctrine	64	(1)
Assault	65	(1)
Horseplay	66	(1)
Heart Cases	66	(1)
Pre-existing Injury or Disease	67	(1)
Unexplained Accidents	68	(1)
The ``in the Course of'' Concept	68	(9)
An Introduction and Perspective	68	(3)
Common ``in the Course of'' Problems	71	(1)
Going to and From Work	71	(1)
Mixed-Purpose Trips	72	(1)
Recreation	73	(1)
Personal Comfort Doctrine	74	(1)
Emergencies	74	(1)
Wilful Misconduct and Violation of Laws, Regulations and Safety Rules	75	(1)
Intoxication	76	(1)
Suicides	76	(1)
The Necessity of ``Personal Injury by Accident''	77	(4)
The Problems	77	(3)
The Solution	80	(1)
Occupational Disease	81	(4)
Coverage Schemes	81	(1)
Coverage Problems	81	(1)
Occupational Disease Versus Accident	81	(1)
Occupational Disease Versus Common Diseases	82	(1)
Occupational Disease and Medical Causation	83	(1)
Special Coverage Restrictions	84	(1)
Death	85	(7)
Death Benefits Generally	85	(1)
Dependency and Partial Dependency	85	(2)
Widow	87	(2)
Living With or Apart	88	(1)
Common--Law Marriage	88	(1)
Children	89	(1)
Family and Household Members	90	(1)
Priorities	90	(2)
Medical Expenses, Disabilities and Benefits	92	(15)
Introduction to Recoveries	92	(1)
Medical Expenses and Rehabilitation	93	(1)
Selection of Physician	94	(1)
Medical Loss and Wage Loss	95	(2)
The Average Wage and Formulas	97	(1)
Disabilities	98	(4)
Disabilities Generally	98	(1)
Temporary Partial	99	(1)
Temporary Total	99	(1)
Permanent Partial	100	(1)
Permanent Total	101	(1)
Disfigurement	101	(1)
Multiple and Successive Injuries	102	(2)
Second Injury Funds	104	(1)
Death After Disability	105	(1)
Death Compensation Benefits	106	(1)
Administration	107	(12)
Introduction	107	(1)
Commissions Versus Courts	108	(1)
Notices	109	(1)
Statutes of Limitation	110	(1)
Waiting Periods	111	(1)
Hearings, Evidence and Review	112	(2)
Compromise, Settlement, and Lump Sum Commutation	114	(1)
Reopening, Modification, Termination, and Redistribution	115	(1)
Insurance	116	(2)
Removal	118	(1)
Extraterritorial Problems and Overlapping Coverages	119	(7)
Conflict of Laws	119	(2)
Full Faith and Credit	121	(1)
The Problem of Overlapping Coverage	122	(4)
Third Party Actions	126	(7)
Exclusive Nature of Compensation Act	126	(1)
Who are Third Parties	127	(1)
Third Party Actions Against the Employer	128	(1)
Defenses of Third Parties	129	(1)
Subrogation	129	(2)
Uninsured Motorist Insurance and No-Fault Insurance	131	(2)
Future of Workers' Compensation	133	(6)
The National Commission on State Workmen's Compensation Laws	133	(2)
National Workers' Compensation Standards Act Proposals	135	(1)
Allocation of Future Economic and Social Burdens for Industrial Accidents and Diseases	136	(3)
PART 3. EMPLOYEE PROTECTION LEGISLATION
Unemployment Compensation	139	(11)
Background	139	(3)
Federal Unemployment Insurance Programs	142	(6)
Regular State Programs	142	(1)
Overview	142	(2)
Procedures and Appeals	144	(1)
Extended and Supplemental Benefits	145	(1)
Federal Employees and Ex--Servicemen	146	(1)
Disaster Unemployment Assistance	147	(1)
Trade Adjustment Assistance	147	(1)
State Financed Programs	148	(2)
Extended and Additional Benefits	148	(1)
Unemployment Compensation Disability Benefits	148	(2)
Fair Labor Standards Act	150	(10)
Introduction	150	(2)
Standards and Requirements	152	(4)
Minimum Wage	152	(1)
Overtime Compensation	153	(2)
Sex--Based Wage Discrimination	155	(1)
Child Labor	156	(1)
Coverages	156	(1)
Enforcement and Remedies	157	(3)
Occupational Safety and Health Act	160	(7)
Background and Scope	160	(2)
Standards and Variances	162	(2)
Enforcement and Procedures	164	(3)
Federal Black Lung Benefits Legislation	167	(6)
Background and Scope	167	(2)
Eligibility and Benefits	169	(2)
Procedures	171	(1)
Mining Safety and Health	172	(1)
Social Security	173	(14)
Introduction	173	(3)
Retirement and Survivors Insurance (OASI)	176	(4)
Eligibility for OASI	176	(1)
OASI Benefit Calculations	177	(1)
OASI Benefits	178	(2)
Disability Insurance (DI)	180	(3)
Eligibility	180	(1)
DI Benefits	180	(1)
DI Evaluation	181	(2)
Medicare--Hospital Insurance (HI) and Supplementary Medical Insurance (SMI)	183	(2)
Supplemental Security Income (SSI)	185	(1)
Procedure	185	(2)
Federal and State Anti-Discrimination Laws in General	187	(5)
Federal Laws	187	(3)
State Laws	190	(2)
Title VII of the 1964 Civil Rights Act, as Amended Through 1991	192	(74)
Scope and Coverage	192	(21)
Protection for Individuals	192	(1)
Employers Governed by Title VII/ADEA	193	(3)
American Corporations' Employees Working Abroad; ``Foreign'' Employers' Personnel in U. S. and Overseas; and National Origin, Alienage and Ancestry Discrimination Under Title VII, IRCA, and 42 U. S. C. A. § 1981	196	(7)
Purely or Partly Religious Employers: Coverage, Exemptions, Defenses	203	(1)
Overview: Discrimination Because of Religion	204	(1)
Prima Facie Prohibitions	205	(1)
BFOQ Defense	206	(1)
``Purely'' Religious Organizations	206	(2)
Religiously Affiliated Educational Institutions	208	(2)
All Employers, Religious or Not: The ``BFOQ'' Affirmative Defense	210	(1)
Constitutional Problems Surrounding Regulation of Religious Discrimination	211	(2)
Title VII: The Basic Substantive Prohibitions	213	(53)
The Meaning of Discrimination Because of ``Race,'' ``Color,'' ``National Origin,'' ``Religion,'' and ``Sex''	215	(1)
Race	215	(1)
National Origin, Including Accent Discrimination and Language Rules	215	(2)
Discrimination Based on Gender	217	(5)
Sexual Harassment	222	(1)
Scope and Uniform Requirements	222	(5)
``Quid Pro Quo'' or ``Tangible Terms'' Harassment	227	(2)
Employer Liability for Quid Pro Quo (Tangible Terms) Discrimination	229	(1)
``Hostile Environment'' Discrimination	230	(7)
Employer Liability for Prohibited Hostile Environment Harassment By Supervisors and Co--Workers	237	(5)
First Amendment Implications of Imposing Liability for Environmentally Harassing Speech	242	(1)
The Special Statutory Concept of ``Religion''	243	(3)
Particular Practices Given Special Statutory Treatment	246	(1)
Restrictions Relative to Pregnancy and Abortion	246	(4)
Fetal Vulnerability Rules	250	(1)
Seniority Systems	251	(3)
Professionally Developed Ability Tests	254	(2)
Retaliation	256	(5)
Constructive Discharge	261	(3)
Union Liability	264	(2)
Title VII Modes of Proof, Administrative Procedures, and Remedies	266	(106)
Individual Disparate Treatment---``Direct'' Evidence	266	(9)
In General	266	(4)
The ``BFOQ'' Affirmative Defense	270	(5)
Individual Disparate Treatment---Inferential Proof	275	(17)
In General	275	(9)
The Problem of ``Mixed Motives''	284	(4)
``After--Acquired Evidence'': A Limitation of Employer Liability	288	(4)
Systemic Disparate Treatment	292	(9)
The Relief Stage of the Bifurcated Systemic Disparate Treatment Action	301	(3)
How the Individual and Systemic Disparate Treatment Cases Interrelate	304	(1)
Neutral Practices with Disproportionate Adverse Impact	305	(10)
Administrative Prerequisites and Procedures	315	(25)
In General	315	(5)
Continuing Violations	320	(3)
From EEOC to Federal or State Court	323	(3)
Arbitration as Precluding the Civil Lawsuit: The Potential of the Gilmer Decision	326	(4)
Suit by EEOC	330	(2)
Plaintiff Joinder and Class Actions	332	(5)
Relation of Federal Lawsuit to EEOC Investigation	337	(2)
Employer Recordkeeping Requirements	339	(1)
Title VII Remedies	340	(15)
Reinstatement and Back Pay	340	(5)
Compensatory and Punitive Damages for Title VII and Americans With Disabilities Act Violations After November 20, 1991	345	(8)
Tax Treatment of Settlement or Judgment Proceeds in Employment Discrimination Cases	353	(2)
Retroactive Seniority for Proven Victims of Discrimination	355	(5)
Affirmative Action by ``Voluntary'' Programs and Judicial Decrees	360	(10)
Procedures and Remedies in Affirmative Action Challenges	370	(2)
Other Federal Antidiscrimination Laws	372	(114)
The Civil Rights Acts of 1866, 1870, and 1871	372	(24)
In General	372	(2)
Section 1981	374	(9)
Section 1983	383	(4)
Whether § 1981 Plaintiffs Suing State and Local Government Employers Must Meet the Additional Proof Requirements of § 1983	387	(2)
Bivens Claims Asserted Directly Under U. S. Constitution	389	(3)
Section 1985(3)	392	(4)
The Equal Pay Act of 1963	396	(20)
EPA Coverage, the Prima Facie Case and Affirmative Defenses	397	(1)
Coverage	397	(2)
Equal Work	399	(1)
Unequal Pay	400	(1)
Equal ``Rate'' of Pay	400	(1)
The Necessity of a ``Comparator'' Within a Single ``Establishment''	401	(2)
The Employer's Defenses	403	(2)
Retaliation	405	(1)
Enforcement, Limitations, and Remedies	406	(1)
Enforcement	406	(1)
Limitations	407	(1)
Continuing Violations	408	(1)
Remedies	409	(1)
Gender--Based Compensation Discrimination Outside the Reach of EPA But prohibited by Title VII	410	(1)
Comparable Worth	411	(2)
Claims Covered by Title VII and EPA	413	(3)
The Age Discrimination in Employment Act of 1967, as Amended (``ADEA'')	416	(36)
In General	416	(3)
Coverage	419	(6)
Proof Modes	425	(5)
Mixed Motives in ADEA Disparate Treatment Cases	430	(4)
Does a ``Neutral Practice/Adverse Impact'' Theory Survive Under Adea?	434	(4)
Retaliation	438	(1)
The Older Workers Benefit Protection Act	438	(2)
Waiver of Rights or Claims Under the ADEA After OWBPA	440	(3)
ADEA Procedures	443	(4)
ADEA Remedies	447	(5)
Sex Discrimination in Federally Funded Education Programs: Title IX	452	(6)
Covered Programs or Activities	453	(2)
Exemptions	455	(1)
Elements of a Private Action Under Title IX	455	(2)
Damages	457	(1)
Costs and Fees: Federal Rule of Civil Procedure 54(d), The Civil Rights Attorney's Fees Awards Act, and Federal Rule 68	458	(19)
Recovering Costs of Suit: F. R. C. P. 54(D)	458	(1)
Attorney's Fees for Prevailing Parties: The Civil Rights Attorney's Fees Awards Act	459	(15)
F. R. C. P. 68: The Denial of Post-Offer Costs and Fees to a Plaintiff Who Rejects a Defendant's Offer of Judgment and Obtains a Smaller or Equal Judgment	474	(3)
Disability Discrimination: The Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973	477	(9)
Miscellaneous Employee Protection Laws	486	(15)
Employee Retirement Income Security Act of 1974 (ERISA)	486	(1)
National Labor Relations Act	487	(1)
Labor Management Relations Act	488	(1)
Federal Construction Projects	489	(1)
Executive Orders	490	(1)
Foreign Boycott Laws	491	(1)
Federal Credit Laws	491	(1)
Jury Service	492	(1)
Unjust Discharges	492	(3)
Drugs in the Workplace	495	(1)
Polygraphs	496	(1)
Notice of Plant Closings	496	(1)
Migrant Farm Workers	497	(1)
Contagious Diseases in the Work Place	497	(1)
Family and Medical Leave	498	(1)
Violence Against Women	498	(1)
Uniformed Services Personnel	499	(2)
Index	501