This post was originally published by SCOTUSblog. Reprinted under Creative Commons license CC-BY-NC-ND 3.0. It's a follow-up to the April 15 post, "At a Vestige of the Manhattan Project, a Fight over Workers’ Compensation and Intergovernmental Immunity"

It might not be easy to get to the merits of United States v. Washington. A funny thing happened on the way to oral argument: The state of Washington modified the 2018 workers' compensation law at the center of the case, raising the prospect that there is no longer a live dispute for the justices to resolve.

The state's old law, H.B. 1723, was aimed at federal contract workers who got sick after helping clean up the Hanford nuclear site in southern Washington. It created a presumption that certain conditions suffered by those workers were "occupational diseases." The new law, S.B. 5890, expanded the …

This post was originally published by SCOTUSblog. Reprinted under Creative Commons license CC-BY-NC-ND 3.0.

Under established constitutional law, states may generally not tax or regulate property or operations of the federal government. This principle is known as intergovernmental immunity. Congress may waive this federal immunity, however, and the scope of that principle is the major issue in Monday’s oral argument in United States v. Washington.

A 1936 federal law waives federal immunity from state workers’ compensation laws on federal land and projects. Congress passed the law after the Supreme Court held that states could not apply workers’ compensation statutes to federal facilities. The 1936 waiver authorizes state workers’ compensation authorities to “apply [state workers’ compensation laws] to all land and premises in the State which the Federal Government owns or holds by deed or act of cession, and to all projects, buildings, constructions, improvements, and …

Originally published on Workers' Compensation Law Prof Blog. Reprinted with permission.

Workers' compensation was created as a means to an end and not an end in itself. It addressed the outrageous frequency of workplace injury and death caused by railroads in the late 19th/early 20th century. The unholy trinity of employers' affirmative tort defenses – assumption of the risk, contributory negligence, and the fellow servant rule – meant that workers or their survivors were not being compensated adequately or, in many cases, not at all.

For this reason, expert American investigators were dispatched to Europe between 1909 and 1911 to study the existing workers' compensation systems there. Those experts' work set American workers' compensation baselines. The oddity is that while Europeans moved on to universal benefit systems, we continue to use their 19th century work-injury system. (I write about these developments here). Additionally, the United States briefly flirted …

While I suspect that workers' compensation claims, even without the aid of workers' compensation causation presumptions, may fare better than some actuaries suspected (preliminary scuttlebutt of about a 40 percent success rate is higher than I expected), there is no reasonable doubt that large numbers of workers will ultimately go uncovered under workers' compensation during the COVID-19 pandemic.

As I have argued throughout my postings on this blog, workers' compensation exclusions and denials will pose many challenging legal questions. In the meantime, however, many disabled workers will simply find themselves uncompensated (some may receive assistance under the Federal Pandemic Unemployment Compensation Program; eligibility is tricky, however, because under state unemployment compensation law an individual must generally be available for work – and not disabled – in order to qualify, a topic beyond the scope of this post).

In short, there are gaps and fissures appearing under state workers' compensation …

For decades, commentators have complained about how long it can take for workers attempting to unionize to simply get an election in which workers make an up-or-down decision on whether to form a union. For many years, employers were able to raise hyper-formalistic legal arguments that took so long to resolve that the employees initially interested in forming a union had often moved on to other employment. In far too many cases, employers also unlawfully coerce workers during the delay, and those workers eventually withdraw their support for the union.

After much internal political wrangling, the National Labor Relations Board (NLRB) enacted a series of new election procedures in 2014 meant to accomplish a simple objective: to get interested employees to a union election first and then (if necessary) address the typical mountain of anti-worker legal challenges. Prior to the changes, many of these challenges were adjudicated …

Originally published on Workers' Compensation Law Prof Blog. Reprinted with permission.

A recent, interesting lawsuit filed against McDonald's, in Cook County, Illinois, suffers from few of the deficiencies that I have identified in prior postings about public nuisance cases related to COVID-19 (see here and here). The named employee-plaintiffs allege "negligence" in what might look at first blush like a drop-dead workers' compensation case. This time, however, there is a wrinkle: The negligence action is pursued against both franchisor-McDonalds (McDonald's USA) and certain of McDonald's franchise restaurants (McDonald's Restaurant of Illinois, Inc., Lexi Management LLC, and DAK4, LLC). One may be the employer (subject to workers' compensation liability), and the others may not (and therefore be liable in tort). Because you cannot know in advance how the question will come out, you allege negligence with respect to each defendant. This is perfectly sensible.

It will be politically …

Originally published on Workers' Compensation Law Prof Blog. Reprinted with permission.

Listening in on Tuesday's Senate Hearing on Corporate Liability During the Coronavirus Pandemic – you can find the video here and do a text search for "workers' compensation" – I was especially pleased to hear workers' compensation immunity discussed at 1:14:20 to about 1:14:50. Sen. Sheldon Whitehouse of Rhode Island specifically asked whether blanket corporate immunity would constitute subsidization of workers' compensation insurers. Witness Professor David Vladeck of Georgetown University Law Center responded that it very well could if workers' compensation were not carved out of the bill. I did not hear anyone contend during the hearing that workers' compensation could not be part of an immunity blanket, which is food for thought.

Coincidentally, I had been reading in The Atlantic as the Senate hearing was commencing an exceptionally good and sobering account of …

Originally published on Workers' Compensation Law Prof Blog. Reprinted with permission.

In what for me is an ominous development, the Smithfield Foods public nuisance case, about which I blogged earlier, has been summarily denied by a Missouri federal district court and the case has been dismissed. The decision took all of twelve days.

In a nutshell, the court accepted the primary jurisdiction arguments that I have previously discussed but will not repeat here. Sometimes cases are illustrative of clear legal principles. This, for me, is not one of those cases. Sometimes cases set "mood points." And I fear that is the situation here. I have great concern about the prospect for an unreflective, anti-liability fervor enveloping the Great Reopening, though this decision did not directly reach questions of liability that could impact state workers' compensation or tort law. Narrowly read, the heart of the case is …

Cross-posted by permission from Workers' Compensation Law Prof Blog.

As Senate Republicans and corporations continue to lobby for the broadest possible “liability shields” in connection with the Great Reopening, a novel lawsuit framed in terms of public nuisance theory is being litigated in a Missouri federal court. From the Nolo Plain-English Legal Dictionary, a public nuisance is defined as “[a]n activity or thing that affects the health, safety, or morals of a community. It is distinguished from a private nuisance, which harms only a neighbor or a few individuals. For example, a factory that spews out clouds of noxious fumes is a public nuisance, but playing drums at three in the morning is a private nuisance bothering only the immediate neighbors.”

So, under the theory of the case I'm about to discuss, when a meat-packing plant does not conform to, for example, CDC social-distancing guidelines, it …