• Serious Workplace Injuries Cost Employers $50.8 Billion  in 2003 - 11/16/2005
• Supreme Court Ruling Backs Workers in Don/Doff Pay Dispute - 11/09/2005
• Workplace Injuries Fall

Employers spent $50.8 billion in 2003 on wage payments and medical care for workers hurt on the job, according to the Workplace Safety Index, which is produced by the Liberty Mutual Research Institute for Safety.

As for the good news, the number of serious workplace accidents fell 6.2 percent in 2003, almost half the total 13.5 percent decline over the last 5 years.

Meanwhile, the rate of growth in the cost of these injuries slowed to 0.7 percent in 2003, compared to 6.5 percent in 2002, after adjusting for inflation.

According to the Workplace Safety Index, the leading cause of serious workplace injuries was overexertion from excessive lifting, pushing, pulling, holding, carrying or throwing of an object. Overexertion-related injuries cost employers $13.4 billion in 2003, according to the index.

The second-leading cause of injuries was falls on the same level, which cost employers $6.9 billion.

The top 10 leading causes of workplaces injuries in 2003 – and their associated costs – were:

1. Overexertion, $13.4 billion
2. Falls on the same level, $6.9 billion
3. Bodily reaction (injuries from bending, climbing, slipping or tripping without falling), $5.1 billion
4. Falls to lower level, $4.6 billion
5. Struck by object, $4.3 billion
6. Repetitive motion, $3.0 billion
7. Highway incidents, $3.0 billion
8. Struck against object, $2.2 billion
9. Caught in or compressed by equipment, $2.0 billion
10. Assault and violent acts, $0.4 billion

All other causes combined cost employers $5.8 billion.

Included in the silver lining within these huge numbers is the index's finding that the real cost of two of the top five causes of serious workplace injuries fell sharply between 2002 and 2003.

The cost of bodily reaction dropped 4.7 percent, driven by an 11.6 percent decline in the number of these accidents.

The cost of struck-by-object fell 3.4 percent, because of a 12.5 percent decline in the number of these injuries.

The Liberty Mutual Workplace Safety Index tracks the causes and costs of serious workplace injuries – defined by Liberty Mutual as those that require an employee to miss 6 or more days from work – and uncovers trends in the leading causes of those injuries.

Researchers combine information from Liberty Mutual, the federal Bureau of Labor Statistics and the National Academy of Social Insurance to provide a broad snapshot.

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However, the court concluded that time spent waiting to don the first piece of safety gear at the beginning of the workday is not compensable.

The Supreme Court ruled on a consolidation of two cases – IBP Inc. vs. Alvarez et al. and Tum et al. vs. Barber Foods Inc. – that both asked the high court whether the time employees spend walking between the changing area and the production area is compensable under the Fair Labor Standards Act (FLSA) of 1938 as amended by the Portal-to-Portal Act.

A second question posed by one of the cases was whether the time employees spend waiting to put on protective gear is compensable under FLSA.

Post-Donning, Pre-Doffing Time Covered by FLSA

The Supreme Court reached the unanimous opinion that post-donning and pre-doffing walking time is compensable, because it is not excluded by the Portal-to-Portal Act and therefore is covered by the FLSA.

Justice John Paul Stevens, in the Nov. 8 opinion, notes that the high court's interpretation of FLSA in Anderson vs. Mt. Clemens Pottery Co. in 1946 was that employers must pay their workers for time spent walking from time clocks near the plant entrance to their work stations.

However, the Portal-to-Portal Act, passed by Congress in 1947 to amend certain parts of the FLSA, says employers do not have to pay their workers for pre-shift and post-shift activities unless those activities are an integral and indispensable part of the workers' jobs.

Stevens points out in the Nov. 8 opinion that the Supreme Court in 1955 (Steiner vs. Mitchell) ruled that workers in a battery plant were entitled to compensation for the time spent between changing into protective clothing at the beginning of a shift and showering at the end of the shift. The 1955 decision was based on the high court's assertion that "donning and doffing of protective gear in that case were activities 'integral and indispensable' to the workers' principal activity of making batteries," Stevens wrote in the Nov. 8 opinion.

Stevens also points to the Department of Labor's "continuous workday rule," which stipulates that "'workday' is generally defined as 'the period between the commencement and completion on the same workday of an employee's principal activity or activities.'"

Meat producer IBP – which was purchased by Tyson Foods in 2001 – argued that donning safety gear is not a principal activity that starts the workday, and, consequently, post-donning and pre-doffing walking time is not compensable.

The Supreme Court disagreed, holding that changing into and out of required safety gear are integral and indispensable parts of workers' jobs.

" … We hold that any activity that is 'integral and indispensable' to a 'principal activity' is itself a 'principal activity' under [Section] 4(a) of the Portal-to-Portal Act," Stevens wrote. "Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA."

Nov. 8 High Court Ruling Originated with Worker Lawsuits. In IBP Inc. vs. Alvarez, workers at IBP's slaughter and meat processing plant in Pasco, Wash., filed the original class action lawsuit against IBP in 1999 seeking compensation for time spent donning and doffing required safety gear and walking from the locker rooms to the production floor.

In that case, the 9th U.S. Circuit Court of Appeals in Seattle ruled in 2003 that IBP must pay its employees for the time it takes them to change into required safety/sanitary equipment and gear as well as the time it takes to walk between the changing and production areas. The Supreme Court on Nov. 8 affirmed the ruling.

In Tum vs. Barber Foods Inc., the 1st Circuit Court of Appeals agreed with a district court's conclusion that employees at the Portland, Maine, poultry processing plant of Barber Foods should be paid for donning and doffing required safety gear, including lab coats, earplugs, hairnets, safety glasses, steel-toed boots, aprons and vinyl gloves.

However, the appeals court ruled that walking and waiting time associated with donning and doffing required safety gear was not compensable, holding that waiting and walking time are considered "preliminary" and "postliminary" activities by the Portal-to-Portal Act and therefore are not covered by FLSA.

The Supreme Court on Nov. 8 affirmed the 1st Circuit's ruling that time spent waiting to don safety gear at the beginning of the workday is not compensable.

"In short, we are not persuaded that such waiting – which in this case is two steps removed from the productive activity on the assembly line – is 'integral and indispensable' to a 'principal activity' that identifies the time when the continuous workday begins," Stevens wrote. "Accordingly, we hold that [Section] 4(a)(2) excludes from the scope of the FLSA the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday."

The high court, however, reversed the appeals court's ruling that time spent waiting to doff required safety gear is not compensable by virtue of the Portal-to-Portal Act exclusion. The Supreme Court ruled Nov. 8 that time spent waiting to doff protective gear is covered by FLSA and therefore compensable.

Union Calls Court Ruling 'A Victory for American Workers'
A statement issued by the Service Employers International Union (SEIU) called the Supreme Court decision "a victory for American workers."

"The court unanimously sent a strong message that employers cannot skirt the rules enshrined in the Fair Labor Standards Act," SEIU said. "The ruling is especially welcome as more and more employers seek ways to cut costs to the detriment of workers and increasingly interfere with their employees' free choice to form a union.

"We applaud our nation's highest court for upholding the protections and pay standards that workers are entitled to under the law."

IBP's parent company, Springdale, Ark.-based Tyson Foods, in a statement said the company "appreciates the court's clarification of the law."

"These rulings provide additional direction for businesses like ours about how people should be paid for the time they work," the company said. " … We will now analyze what impact, if any, these rulings will have on the company."

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Workplace Injuries Fall

A total of 4.3 million nonfatal injuries and illnesses were reported in private industry workplaces during 2004, down from 4.4 million in 2003, according to the Bureau of Labor Statistics of the Department of Labor.

These cases occurred at a rate of 4.8 cases per 100 equivalent full-time workers, a decline from the rate of 5.0 cases per 100 equivalent full-time workers in 2003. This drop in the injury rate resulted from a 2.5 percent decrease in the number of cases reported combined with a 1.6 percent increase in the number of hours worked.

In private industry in 2004, rates for injuries and illnesses combined ranged from 1.9 cases per 100 workers for small establishments (those employing 1 to 10 workers) to 5.9 for mid-size establishments (those employing 50 to 249 workers). While incidence rates remained relatively unchanged for establishments employing fewer than 250 workers, the rates for establishments with 250 to 999 workers and for establishments with 1,000 or more workers both declined significantly in 2004 to 5.4 cases per 100 full-time workers, down from 5.8 and 5.7 cases per 100 workers, respectively, in 2003.

Approximately 2.2 million injuries and illnesses were cases with days away from work, job transfer, or restriction(that is, they required recuperation away from work, transfer to another job, restricted duties at work, or a combination of these actions). The remaining 2.0 million injuries and illnesses were other recordable cases that did not result in time away from work.

The incidence rate for cases with days away from work, job transfer, or restriction was 2.5 cases per 100 workers, and the rate for other recordable cases was 2.3. Both of these rates decreased by 0.1 cases per 100 workers from 2003.

Cases with days away from work, job transfer, or restriction are comprised of two case types, those requiring at least one day away from work, with or without job transfer or restriction, and those requiring only job transfer or restriction. The latter case type may involve shortened work hours, a temporary job change, or temporary restrictions on a worker's regular duties; for example, no heavy lifting.

Separately, the rate for cases with days away from work was 1.4 cases per 100 workers and the rate for cases with job transfer or restriction was 1.1 cases per 100 workers.

Of the 4.3 million nonfatal occupational injuries and illnesses in 2004, 4.0 million were injuries. There were about 249,000 newly reported cases of occupational illnesses in private industry in 2004, down by nearly 8 percent from 269,500 cases in 2003.

In August, the bureau reported a 2 percent rise in the number of fatal work injuries in 2004. Fatal work injuries increased from 5,575 in 2003 to 5,703 in 2004.