Jack Hood - Workers Compensation and Employee Protection Laws in a Nutshell

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JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California, Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Earle K. Shawe Professor of Law,
University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

WORKERS COMPENSATION AND EMPLOYEE PROTECTION LAWS

IN A NUTSHELL

SIXTH EDITION

JACK B. HOOD

Former Adjunct Professor of Law
University of Georgia School of Law

BENJAMIN A. HARDY, JR.

Associate Professor
Jacksonville State University

LAUREN A. SIMPSON

Juris Doctor
Member of the Alabama Bar

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ISBN: 978-1-63460-320-1

Our wives and families:

Wife, Pat Hood; daughters Sara and Laura Hood; and Lauras son, Walkin E. Cleage

Wife, Linda Hardy; and son, Andy Hardy

Father, William Simpson; and
mother, Pamela Simpson

PREFACE

Our purpose in writing this Nutshell is to provide an overview of the laws affecting employees in the workplace. It is our hope that the sections on workers compensation and employment discrimination will provide both students and lawyers with insight into the most common questions in the fields. Only brief summaries have been attempted in the chapters and sections dealing with other employee protection laws because the subject areas were too large for a more detailed explanation in a Nutshell.

It should be noted that over one hundred years ago, in 1911, Wisconsin enacted the first constitutional workers compensation law on the state level in the United States. Many changes have occurred in social legislation since then, but workers compensation has remained a central part of the employee-employer legal relationship. It appears that workers compensation will retain that important role for the foreseeable future. An excellent and comprehensive treatment of workers compensation is to be found in Larsons multi-volume treatise on the subject, and we have given some useful citations to that work at relevant points. We have also given numerous cites to Modern Workers Compensation (Westlaw database MWC) and to Wests Workers Compensation Guide (Westlaw database WCGD).

Citations to legislation, cases, materials, websites, works, and treatises have been added in most of the chapters and sections so that one can further pursue the specific topics and issues more easily.

We would like to acknowledge and thank our research assistant and University of Virginia Law School student, Julia Maloney, of Jacksonville, Alabama. We further acknowledge and thank Louis H. Higgins, Editor in Chief, and Austin Mac Soto, Acquisitions Editor, of West Academic Publishing in St. Paul, Minnesota. We also express our appreciation to the law libraries at the Cumberland School of Law of Samford University and the University of Alabama.

Jack B. Hood
Benjamin A. Hardy, Jr.
Lauren A. Simpson

September 1, 2016

Birmingham, Alabama

OUTLINE

Longshore and Harbor Workers Compensation
Act

F. Disability Compensation Systems in the United
States

Racketeer Influenced and Corrupt Organizations
Act (RICO)

. The Employee-Employer
Relationship

Common Carriers and Transportation
Employers

Necessity for a Personal Injury by Accident Arising out of and
in the Course of Employment

h. Unexplained Accidents and Idiopathic
Falls

b. Occupational Disease Versus Common
Disease

. Medical Expenses, Disabilities, and
Benefits

G. Compromise, Settlement, and Lump Sum
Commutation

H. Reopening, Modification, Termination, and
Redistribution

O. Workers Compensation and the Affordable Care
Act

. Extraterritorial Problems and
Overlapping Coverages

F. Uninsured Motorist Insurance and No-Fault
Insurance

B. National Workers Compensation Standards Act
Proposals

D. Medicare-Hospital Insurance (HI) (Part A) and
Medicare-Medical Insurance (MI) (Part B)

E. Medicare Advantage (MA) (Part C) and Prescription
Drug (PD) (Part D)

Unemployment Compensation Disability
Benefits

. Employee Retirement Income Security
Act of 1974 (ERISA)

Title VII of the 1964 Civil Rights Act, as
Amended

(3) American Corporations
Employees Working Abroad; Foreign Employers Personnel in the U.S. and Overseas; and National Origin,
Alienage, and Ancestry Discrimination Under Title VII, IRCA, and 42 U.S.C.A. 1981

i. Overview: Discrimination Because
of Religion

(5) Purely Religious
Organization

(6) Religiously Affiliated Educational
Institutions

(7) All Employers, Religious or Not:
The BFOQ Affirmative
Defense

(1) The Meaning of Discrimination Because
of Race, Color, National Origin, Religion, and Sex

c. Employer Liability for Quid
Pro Quo (Tangible Terms) Discrimination

e. Employer Liability for
Prohibited Hostile
Environment Harassment by Supervisors and Coworkers

f. First Amendment Implications
of Imposing Liability for Environmentally Harassing Speech

v. The Special Statutory
Concept of Religion

vi. Wage Discrimination and
the Equal Pay Act

c. Title VII Modes of Proof, Administrative
Procedures, and Remedies

(1) Individual Disparate Treatment
Direct Evidence

ii. The BFOQ Affirmative
Defense

(2) Individual Disparate Treatment
Indirect or Inferential Evidence of Discrimination

iii. Supervisors: Special Evidentiary
and Employer Liability
Problems

b. Employer Liability in Cats
Paw Cases

v. After-Acquired Evidence:
A Limitation of Employer
Liability

(4) The Relief Stage of the Bifurcated
Systemic Disparate Treatment
Action

(5) How the Individual and Systemic Disparate Treatment Cases
Interrelate

(6) Neutral Practices with
Disproportionate Adverse Impact