Occupational Injuries and Third-Party Tort Claims: Effecting Change for Freelancers in the Digital Age or More Dust in the Wind?

By Karen C. Yotis, Esq.

Industrial accidents and occupational disease epidemics motivated the movement to pass national health and safety laws, and the interaction between third-party actions in the workplace and these historical drivers should operate to preserve and expand the crumbling Grand Bargain in a battle that is currently crystalizing around the rising ranks of independent contractors. These is the nutshell premise that Rutgers Law School Senior Fellow George W. Conk espouses in his comment Deadly Dust: Occupational Health and Safety as a Driving Force in Workers’ Compensation Law and the Development of Tort Doctrine and Practice, published by Rutgers Law Review in Spring 2017. To support his views, Conk travels along a bit of an historical memory lane to show how the relationship between tort law and occupational disease has spawned many of the important objectives that protect workers’ health and safety, and how that symbiosis may still effect positive change for what Conk refers to as today’s “network-dominated and atomized workforce.”

A Grand Bargain History Lesson

Conk begins with some comments about how tort law continues to impact the (in)famous Grand Bargain and points out that aside from the exclusive remedy provision in workers’ compensation, the concept of full tort recovery has persisted, especially in the third-party context.

Conk also looks to the rise of workers’ compensation laws across the nation from 1910 to 1930 to demonstrate how the Grand Bargain was truly a victory for workers and the public health. With a hat tip to Arthur Larson’s authoritative detailing of the Grand Bargain’s basic structure, Conk deems it “a larger labor victory than is often recognized” because a tort system—even one that abolished contributory negligence, the fellow servant rule, and assumption of the risk defenses during the Progressive Era—would have been a unreliable source for the medical care that sick and injured workers needed most. Conk also touches upon subsequent Depression Era developments—think NLRA and FSLA—and the later Modern Era enactment of Title VII and OSHA—to show how industrial accidents and occupational disease epidemics have continued to drive the passage of national health and safety laws.

That Ol’ Third-Party Magic

Conk goes on to posit that the preservation of the third-party action in tort—especially in the product liability context—has continued to supplement workers’ compensation benefits and invigorate tort law. This is especially apparent in the struggle to recognize occupational disease as a workers’ safety and health measure, with the advent of laws at the state and federal levels that have improved and informed workers’ compensation. Conk looks to The Black Lung Benefits Act, the Coal Mine Safety and Health Act of 1969, the 1977 Mine Safety and Health Act and OSHA (which we’re reminded was driven in part by the 1960’s asbestos epidemic) as examples of how “labor and progressive advocacy has come to benefit workers far beyond that of their own membership.”

Conk devotes entire sections of his article to silicosis and asbestosis to again show how third-party product liability actions were the only force that could further reduce workers’ losses when neither exposure standards nor scientific research had stopped their industrial use. He also explains how third-party actions challenged courts in positive ways, and magnified and resolved issues relating to latent causation of signature diseases, evidentiary reliability, and the admissibility of expert opinion testimony. According to Conk, the massive asbestos product liability cases—most of which arose from third-party workplace tort actions—significantly improved courts’ competence to handle scientific evidence.

Legal Eagle Activists

Cross also credits the zealous advocacy of claimants’ attorneys for effecting these achievements. In what amounts to an academic love letter to the plaintiffs’ bar, Conk gushes: “[T]hey rewrote the law of civil procedure and torts … [and] set a record for achievement that, in magnitude, surpasses what almost anyone else in the history of American civil justice has ever accomplished.”

And it’s these legal gladiators who will supposedly continue to fight the good fight now that the nation has transformed from mass production to what Conk calls “atomization and digitalization.” As Conk correctly points out, “in the brave new-networked world, the concept of independent contractor—familiar from tort law—threatens to sharply limit the scope of [worker] coverage.” Conk suggests that the differences in coverage from each state’s independent contractor laws should compel a national solution of the kind espoused in the National Commission on State Workmen’s Compensation Laws urged in its 1972 report. But we all know how that turned out.

Dust in the Wind

Conk cuts to the chase when he observes that the unresolved battle over whether an employee is a worker or an independent contractor currently leaves the freelancer to “the vagaries of state mandatory insurance laws,” not to mention their individual choices regarding what first party insurance to buy.

Conk accurately depicts the true nature of the new worker economy when he writes:

“Though it is unfashionable to say so, the class struggle continues and is much complicated by the change in technology. We are moving from a mass production factory model to a network-dominated and atomized workforce which many confuse with freedom or autonomy.”

According to Conk, the goal (presumably for those lawyer warriors) should be to preserve for the Network Era those “universalizing principles” that workers’ comp laws pioneered, and extend mandatory coverage to the millions of sick and injured home-workers, drivers, self-employed, carpentry contractors and laborers that are currently (and in Conk’s view unreasonably) classified as independent contractors. Conk would place the liability for this coverage upon the owners of today’s network businesses like Uber, Airbnb and Google, in like manner to the responsibilities that direct employees were compelled to take on 100 years ago. This would involve tweaking of concepts like the nature of work test, overtime, minimum wage and the entire idea of independent contractor to provide Progressive Era-type universal coverage for today’s freelancers and part-timers, even the ones that do work for small businesses.  

I have been a Network Era freelancer since 2011 and know first-hand what it’s like to be categorized as so much dust in the wind when it comes to basic benefits like workers’ compensation coverage and health insurance, not to mention reliable payment for services rendered. Most (large corporate) clients require that I provide annual proof that I’ve purchased my own workers’ compensation coverage (I’m not taking bets on my chances of collecting if I ever make claim under that policy, especially if I’m injured on the “employer’s” premises rather than my own home office). Health insurance isn’t something that ever comes up in discussions about new work. And most income is payable on a 30-day schedule, which means that a check for December hours usually rolls in during February and sometimes March. If I rattled the cage on any of these issues, my assignments would certainly pass to a less troublesome resource. (Yes, the proper corporate speak term for folks like me is “resource.”) Add the unavoidably real impact of ageism and multiply by millions, to begin grasping the magnitude of this unresolved conundrum.

Perhaps Conk is correct. A big, juicy class action battle, spearheaded by a few brilliant worker-side attorneys who can manipulate the law of third-party tort claims in the workplace is what we need to save workers’ compensation coverage for the Network Era’s new wave of worker.

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