(c) 2018 Jon L Gelman, All Rights Reserved.

Friday, May 18, 2018

RBG - Equality in the Workplace

Last night I had the opportunity of viewing the newly released movie, RBG .an insightful and inspiring documentary about the awesome career of Justice Ruth Bader Ginsburg. 
Justice Ginsburg and Jimmy Carter shaking hands,
c. 1980 in RBG, a Magnolia Pictures release.
Photo courtesy of Magnolia Pictures.

On January 17. 973, Justice Ginsburg, then a Rutgers University Law Professor, argued her first case before the US Supreme Court. She advocated for equality and that workplace benefits should not be the subject of sex discrimination. It began her career-long effort to end sex discrimination not only in the workplace but in all aspects of life.

Frontiero v. Richardson, 411 U.S. 677 (1973), was a landmark United States Supreme Court case  that held that benefits given by the United States military to the family of service members cannot be given out differently because of sex.

Justice Ruth Bader Ginsburg stated at oral argument:

"Mr. Chief Justice and may it please the Court.

Amicus views this case as kin to Reed v. Reed 404 U.S. The legislative judgment in both derives from the same stereotype.

The man is or should be the independent partner in a marital unit.

The woman with an occasional exception is dependent, sheltered from breadwinning experience.

Appellees stated in answer to interrogatories in this case that they remained totally uninformed on the application of this stereotype to serve as families that is they do not know whether the proportion of wage-earning wives of servicemen is small, large, or middle size.

What is known is that by employing the sex criterion, identically situated persons are treated differently.

The married serviceman gets benefits for himself, as well as his spouse regardless of her income.

The married servicewoman is denied medical care for her spouse and quarter's allowance for herself as well as her spouse even if as in this case, she supplies over two-thirds the support of the marital unit.

For these reasons, amicus believes that the sex-related means employed by Congress fails to meet the rationality standard.

It does not have a fair and substantial relationship to the legislative objective so that all similarly circumstanced persons shall be treated alike.

Nonetheless, amicus urges the Court to recognize in this case what it has in others, that it writes not only for this case and this day alone but for this type of case.

As is apparent from the decisions cited at pages 27 to 34 of our brief, in lower federal as well as state courts, the standard of review in sex discrimination cases is, to say the least confused.

A few courts have ranked sex as a suspect criterion.

Others, including apparently the court below, in this case, seem to regard the Reed decision as a direction to apply minimal scrutiny and there are various shades between.

The result is that in many instances, the same or similar issues are decided differently depending upon the court’s view of the stringency of review appropriate.

To provide the guidance so badly needed and because recognition is long overdue, amicus urges the Court to declare sex a suspect criterion.

This would not be quite the giant step appellee suggests.

As Professor Gunther observed in an analysis of last term’s equal protection decisions published in the November 1972 Harvard Law Review, it appears that in Reed, some special suspicion of sex as a classifying factor entered into the Court’s analysis.

Appellees concede that the principle ingredient involving strict scrutiny is present in the sex criterion.

Sex like race is a visible, immutable characteristic bearing no necessary relationship to ability.

Sex like race has been made the basis for unjustified or at least unproved assumptions, concerning an individual’s potential to perform or to contribute to society.

But appellees point out that although the essential ingredient rendering a classification suspect is present, sex-based distinctions, unlike racial distinctions, do not have an especially disfavored constitutional history.

It is clear that the core purpose of the Fourteenth Amendment was to eliminate invidious racial discrimination.

But why did the framers of the Fourteenth Amendment regard racial discrimination as odious.

Because a person’s skin color bears no necessary relationship to ability, similarly as appellees’ concede, a person’s sex bears no necessary relationship to ability.

Moreover, national origin and alienage have been recognized as suspect classifications, although the newcomers to our shores was not the paramount concern of the nation when the Fourteenth Amendment was adopted.

But the main thrust of the argument against recognition of sex as a suspect criterion centers on two points.

First, women are a majority.

Second, legislative classification by sex does not, it is asserted, imply the inferiority of women.

With respect to the numbers argument, the numerical majority was denied even the right to vote until 1920.

Women today face discrimination in employment as pervasive and more subtle than discrimination encountered by minority groups.

In vocational and higher education, women continue to face restrictive quotas no longer operative with respect to other population groups.

Their absence is conspicuous in Federal and State Legislative, Executive, and Judicial Chambers in higher civil service positions and in appointed posts in federal, state, and local government.

Surely, no one would suggest that race is not a suspect criterion in the District of Columbia because the black population here outnumbers the white.

Moreover, as Mr. Justice Douglas has pointed out most recently in Hadley against Alabama 41 Law Week 3205, Equal Protection and Due Process of law apply to the majority as well as to the minorities.

Due to sex classifications listed by appellees imply a judgment of inferiority.

Even the Court below suggested that they do.

That court said it would be remiss if it failed to notice lurking in the background the subtle injury inflicted on servicewomen, the indignity of being treated differently so many of them feel.

Sex classifications do stigmatize when as in Goesaert against Cleary 235 U.S., they exclude women from an occupation thought more appropriate to men.

The sex criterion stigmatizes when it is used to limit hours of work for women only.

Hours regulations of the kind involved in Muller against Oregon though perhaps reasonable on the turn of the century conditions, today protect women from competing for extra remuneration, higher paying jobs, promotions.

The sex criterion stigmatizes when as in Hoyt against Florida 368 U.S, it assumes that all women are preoccupied with home and children and therefore should be spared the basic civic responsibility of serving on a jury.

These distinctions have a common effect.

They help keep woman in her place, a place inferior to that occupied by men in our society.

Appellees recognize that there is doubt as to the contemporary validity of the theory that sex classifications do not brand the female sex as inferior.

But they advocate a hold the line position by this Court unless and until the equal rights amendment comes into force.

Absent the equal rights amendment, appellees assert, no close scrutiny of sex-based classifications is warranted.

This Court should stand pat on legislation of the kind involved in this case.

Legislation making a distinction, servicewomen regard as the most frozen equity, the greatest irritant and the most discriminatory provision relating to women in the middle -- in the military service.

But this Court has recognized that the notion of what constitutes equal protection does change.

Proponents as well as opponents of the equal rights amendment believe that clarification of the application of equal protection to the sex criterion is needed and should come from this Court.

Proponents believe that appropriate interpretation of the Fifth and Fourteenth Amendments would secure equal rights and responsibilities for men and women.

But they also stressed that such interpretation was not yet discernible and in any event, the amendment would serve an important function in removing even the slightest doubt that equal rights for men and women is fundamental constitutional principle.

In asking the Court to declare sex a suspect criterion, amicus urges a position forcibly stated in 1837 by Sara Grimke, noted abolitionist and advocate of equal rights for men and women.

She spoke not elegantly, but with unmistakable clarity.

She said, “I ask no favor for my sex.

All I ask of our brethren is that they take their feet off our necks.”

In conclusion, amicus joins appellants in requesting that this Court reverse the judgment entered below and remand the case with instructions to grant the relief requested in appellants complaint.

Thank you."

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters.

Thursday, May 10, 2018

Making Workplaces Safer

This marks the 27th year the AFL-CIO has produced a report on the state of safety and health protections for America’s workers. It features state and national information on workplace fatalities, injuries, illnesses, the number and frequency of workplace inspections, penalties, funding, staffing and public employee coverage under the Occupational Safety and Health Act. It also includes information on the state of mine safety and health.

Monday, April 30, 2018

NJ Mandates Reporting of Medicare Conditional Payments

The NJ Division of Workers’ Compensation has now mandated the reporting of pending workers’ compensation claims possibly eligible for reimbursement of conditional medical payments to the US Centers for Medicare and Medicare Services  (CMS) as a condition precedent to the settlement of a pending claim for benefits.  The directive was outlined in a memorandum issued by Russell Wojtenko, Jr., Director and Chief Judge of Compensation on April 18, 2018.
Russell Wojtenko, Jr.,
NJ Director and Chief Judge
 of Compensation

The memorandum stated: “Before a N.J. Judge of Compensation can consider a proposed Order Approving Settlement or Order Approving Settlement under N.J.S.A. 34:15-20 (Section 20 settlement) involving a petitioner who is a Medicare beneficiary, the parties shall first report the required workers' compensation claim information to CMS as set forth by Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007. The parties shall also begin CMS' process of obtaining conditional payment information.”

The parties were reminded of their responsibilities to resolve CMS Secondary Payer Act (MSP) claim issues. “In accordance with the Division's memorandum of March 28, 2016, if conditional payments have been made, it is best left to the parties to decide how they will resolve their remaining Medicare issues. The parties are strongly encouraged to reach specific agreements delineating how their remaining Medicare issues 'Will be resolved, thus protecting the injured Medicare beneficiaries, employers, and workers' compensation insurers, as well as honoring the rights and interests of Medicare. If an agreement is reached, it shall be placed on the record at the time of settlement and memorialized in the settlement Order. The petitioners' attorneys shall also inform their clients, on the record, of the Centers for Medicare & Medicaid Services' requirements and their compliance options."

“Please note that if the parties settle by way of N.J.S.A. 34:15-20, N.J. Division of Workers' Compensation shall not retain jurisdiction of any remaining CMS issues, as a Section 20 settlement has the effect of a dismissal with prejudice, being final as to all rights and benefits of the petitioner and is a complete and absolute surrender and release of all rights arising out of the specific workers' compensation claim petition.

“The Social Security Act specifically precludes Medicare from providing payment for services to the extent that the payment in question has been made or can be reasonably expected to be made promptly under the Workers' Compensation Act. 42 U.S.C.A. § 1395y(b)(2)(A)(ii). The exclusion of benefits provision in a workers' compensation statute did not operate to reduce an employer's liability for medical bills paid by Medicare since Medicare had subrogation rights against the injured employee for amounts recovered in a lawsuit against the employer. Kimberly–Clark Corp. v. Golden, 486 So.2d 435 (Ala.Civ.App.1986). A workers' compensation claimant brought a suit against a workers' compensation insurer and employer for fraud and violation of the Medicare Secondary Payer Act (MSP) in refusing to resume payment of benefits following the exhaustion of the third party recovery. The Federal court permitted the claimant to replead the cause of action for bad faith denial of benefits. Manning v. Utilities Mut. Insurance Co., 254 F.3d 387 (2d Cir.2001).”  Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 18.8  (Thomson-Reuters 2018). 

The legislative intent of the US Congress in enacting the MSP Act, effective November 5, 1980, was to eliminate cost shifting of occupationally related medical expenses from the workers’ compensation insurance system to the US taxpayers. CMS has become stricter on enforcement of conditional medical benefits and anticipated future medical costs.

The NJ directive recognizes the statutory responsibility of employers and insurance carriers under Federal law.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).

Wednesday, April 25, 2018

Equal Pay for Equal Work Now Law in New Jersey - Legislation Signed

NJ Governor Murphy Signs Historic, Sweeping Equal Pay Legislation that will balance the playing field for women receiving workers' compensation benefits for occupational injuries and illnesses.

Fulfilling his commitment to fight gender inequity and support equal pay for women in New Jersey,
NJ Governor Phil Murphy
Governor Phil Murphy today signed into law the most sweeping equal pay legislation in America. The Diane B. Allen Equal Pay Act, named for former State Senator Diane Allen who herself was a victim of bias, strengthens protections against employment discrimination and promotes equal pay for all groups protected by the Law Against Discrimination (LAD).

“From our first day in Trenton, we acted swiftly to support equal pay for women in the workplace and begin closing the gender wage gap,” said Governor Murphy. “Today, we are sending a beacon far and wide to women across the Garden State and in America – the only factors to determine a worker’s wages should be intelligence, experience, and capacity to do the job. Pay equity will help us in building a stronger, fairer New Jersey.”

The legislation amends the LAD to make it a prohibited employment practice for employers to discriminate against an employee who is a member of a protected class. Employers will not be able to pay rates of compensation, including benefits, less than the rate paid to employees not of the protected class for substantially similar work, when viewed as a composite skill, effort, and responsibility.

The bill also prohibits employers from taking reprisals against employees for discussing their pay with others – and provides for three-times the monetary damages for a violation. Furthermore, the aggrieved employee may obtain relief for up to six years of back pay and it allows courts to award treble damages for violations of the law.

"Disability rates for workers' compensation benefits in the State of New Jersey are based upon the computation of the wages of the injured employee. Statutorily, the wages are defined to mean “the money rate” at which the service rendered is compensated. That rate is determined by the wages in effect according to the contract of hiring in force at the time of the accident or exposure of the employee. The use of wages as the base for computing compensation benefits is consistent with the view of workers' compensation as a system which places the cost of employment-related disability on the industry in which it occurs. Tomarchio v. Township of Greenwich, 75 N.J. 62, 379 A.2d 848 (1977)." Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 16.1 (Thomson-Reuters 2018).

In New Jersey, the median salary for women working full-time is just over $50,000, or $11,737 less than the median annual salary for a man. Across all races, women working full-time, on average, earn 82 cents for every dollar earned by a male doing similar work. African-American women earn about 60 cents for every dollar earned by a white male while a Latina earns only 43 cents. Overall, the economic cost of this disparity totals an estimated $32.5 billion a year in lost wages and economic power.

According to the National Women’s Law Center, a 20-year old woman beginning a full-time year-round position may lose $418,800 over a 40-year career in comparison to her male colleague. When that male colleague retires at age 60 after 40 years of work, the woman would have to work 10 more years – until age 70, to close this lifetime wage gap.

The Diane B. Allen Equal Pay Act becomes effective July 1, 2018.

Sponsors of the legislation include Senate President Steve Sweeney, Senators Loretta Weinberg and Sandra B. Cunningham as well as Assembly members Pamela R. Lampitt, Joann Downey, Valerie Vainieri Huttle, Raj Mukherji, Shavonda E. Sumter and Paul D. Moriarty.
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).

Friday, April 6, 2018

2018 Hurricane Season Predicted to be Slightly Above-Average

The 2018 Atlantic Hurricane season has been predicted to be slightly above-average. The report comes from researchers at the Colorado State University (CSU).

Saturday, March 31, 2018

National Asbestos Awareness Week

Designating the first week of April 2018 as National Asbestos Awareness Week.
2d Session
S. RES. 449
March 22, 2018
 (for himself, Mr. DainesMr. CardinMr. DurbinMrs. FeinsteinMr. WhitehouseMs. HarrisMr. LeahyMr. MerkleyMr. BookerMr. MarkeyMr. Isakson, and Ms. Warren) submitted the following resolution; which was considered and agreed to
US Senator Jon Testor

Whereas dangerous asbestos fibers are invisible and cannot be smelled or tasted;

Thursday, March 29, 2018

NJ Expands Access to Medical Marijuana to Include Common Work-Related Conditions

Governor Phil Murphy announced major reforms to New Jersey’s Medicinal Marijuana Program. The permitted medical conditions now include many common work-related medical conditions.