Sunday, July 17, 2016

An Inclusion Debate with Interesting Implications

New Mexico has an interesting distinction in their workers' compensation statute. There is no coverage for farmworkers. The appellate court in New Mexico deemed this unconstitutional about a year ago. The New Mexico Supreme Court was asked to review the matter.

On June 30, 2016 the Supreme Court agreed that this provision of the law is unconstitutional. The decision came in Rodriguez v. Brand West Dairy, and Aguirre v. M.A. & Sons Chili Products WorkCompCentral reported in a July 5, 2016 story that the appellate court's decision was "almost exactly one year ago." The appellate court focused on the distinction and concluded that "there was no longer a rational basis for the exemption." The exclusion of agrigultural workers had been "part of the Workers' Compensation Act for almost 80 years."

The Supreme Court opinion follows a somewhat different analysis, focusing instead upon eaual protection under the law. This is an interesting course, as the equal protection clause of the United States Constitution is focused on discrimination, or disparate treatment, based upon suspect classifications such as race or national origin. The Court's analysis is not clear on how disparity based on employment choices rises to the same level, or how it is subject to equal protection. One New Mexico justice dissented, asserting that this legislative decision is not an equal protection violation. 

I have previously noted that this effort by New Mexico farmworkers to get "into" workers' compensation is a interesting juxtaposition to Florida workers' efforts to get "out of" workers' compensation. There have been a variety of cases in which injured Florida workers have sought to avoid the constraints of workers' compensation in cases like Florida Workers' Advocates v. State of Florida (hereafter "FWA"). 

The decision of the Court creates coverage for employees back to March 30, 2012. The appellate court concluded that this date was appropriate because, acording to WorkCompCentral, a trial decision on that date "put the WCA on notice that the exemption might not pass constitutional muster." That conclusion, in itself, is very interesting. This reasoning by an appellate court is essentially "when you suspect there could be a problem, you should act."

The New Mexico Supreme Court concluded that this "retroactive application" was inappropriate. It concluded that its re-write of the New Mexico statute would apply only prospectively, that is after the Supreme Court mandate. The Court noted that employers had "relied on the statutory exclusion," and should not be prejudiced retroactively for that reliance. 

It is worthy of discussion that "ex post facto law" is forbidden by the United States Constitution. Article 1, Section 9, Clause 3. Specifically, this prohibition is directed at criminal prosecution. The logic is simple. Prosecuting someone for an act which was legal at the time is seen as tyrannical. The same logic, however, can be effectively applied in this context also. 

Workers' compensation is a social and legal contract. Workers and employers have engaged in a "mutual renunciation" of rights by entering this contract. Employees that are covered by workers' compensation generally have given up their rights to sue their employer, and thus access to the civil court system, the process inherent there, various descriptions of damages, and the right to trial by jury which many states afford (the right to jury in the U.S. Constitution is a right in criminal, not civil, litigation). 

So, a significant population of New Mexico agriculture employees enjoyed access to civil courts, rights to a jury, potential entitlement to civil damages. Some may even have been suing their employer at the same time that the claimants in Rodriguez and Aguirre were seeking inclusion and workers' compensation benefits. These other workers, seeking civil damages, might well have been happy with their civil justice access. Certainly, that potential is consistent with the desires of the workers in FWA, preferring civil litigation to workers' compensation. For the appellate court to erase those workers' rights to avoid workers' compensation, retroactively, was inappropriate, poorly reasoned, and inconsitent with the concepts of liberty upon which America was founded. 

So, beginning in 2016, agricultural workers in New Mexico are covered by workers' compensation. There will be employers who are troubled by this change. Workers' compensation is a cost of cdoing business. In one paradigm, this cost is the premium for workers' compensation insurance. In the self-insured paradogm, it is instead the cost of paying benefits. But it is a cost. And the more people (payroll) that is covered by the system, the higher the premiums or other costs will be.

There are likewise employees who are troubled by his expansion. There is some population, proven by FWA and similar cases, that prefer not to be covered by workers' compensation. And these workers are now a part of the system despite their individual preference. Certainly, the decision brings greater consistency. Consistency is sometimes an desireable end in itself.

WorkCompCentral notes that agriculture exclusions remain in other states, including: Oklahoma, "Arkansas, Indiana, Iowa, Kentucky, Georgia, Kansas, Maine, Missouri, Nebraska and Wyoming."

Florida has a broad definition of "employee," found in Fla. Stat. 440.02(15)(a)(italics are direct quote)

“Employee” means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.

This would seem to put Florida in the category of providing "equal" access to workers' compensation, as the New Mexico court has legislated. But Fla. Stat. 440.02(15)(d) says that “Employee” does not, in certain circumstances, include: (italics are direct quote)

A real estate licensee; Bands, orchestras, and musical and theatrical performers, including disk jockeys; An owner-operator of a motor vehicle who transports property under a written contract; A person whose employment is both casual and not in the course of the trade, business, profession, or occupation of the employer; A volunteer; Persons who serve in private nonprofit agencies and who receive no compensation; Volunteers participating in federal programs established under Pub. L. No. 93-113; Any officer of a corporation who elects to be exempt from this chapter, An exercise rider; A taxicab, limousine, or other passenger vehicle-for-hire driver; A person who performs services as a sports official for . . . interscholastic sports, Medicaid-enrolled clients under chapter 393.

But what if a real estate licensee (one, not all), or a band member, sports official, owenr-operator or exercise rider decides that she or he wants coverage, just as Rodriguez and Aguirre did? Should that one individual's preference to participate in workers' compensation in Florida override the will of the others? When legislatures pass laws, they do so as the elected representatives of the people. They hold hearings, listen to the public, consider multiple perspecitives and potential impacts of their decisions. They make compromises and strive to effect fairness among competing interests. 

When parties litigate, they espouse the perspectives in their interest. Certainly, it is rare that a case proceeds with only one perspective presented (unless that party fails to provide notice to those who are sued, which does happen). Courts strive to interpret legal concepts like "equal protection" as expoused by the New Mexico Supreme Court. They do so in a far narrower process, without public testimony and perhaps with no opportunity to consider what is in the best interest of the larger population. 

Their myopic actions in this manner might thus result in a world in which legislative authority to make law will simply fail. The three branch system of government will perhaps evolve to two as the executive branch increasingly dictates by order and the courts increasingly legislate by fiat. This will seem problematic to some. Those who think that such change is impossible perhaps need to look around. 

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