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May 5, 2020 by Michael C. Duff

The Public Nuisance Litigation in a Smithfield Foods Meatpacking Case: Workers' Compensation Implications?

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 is not only the worker who is exposed to a heightened risk of Covid-19 contraction, it is the entire community. The suit Download Smithfield Public Nuisance Base Complaint, styled Rural Community Workers Alliance and Jane Doe v. Smithfield Foods, Inc. and Smithfield Fresh Meats Corp., has been filed in the U.S. District …

May 4, 2020 by Sean B. Hecht
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For decades, "states' rights" has been a rallying cry of the right wing. Most Americans are familiar with the dynamics that required the federalization of civil rights law, both in the 1860s and again in the 1960s, the protection of much of our nation's federal lands, and the national crises that necessitated the federal government to enact national minimum standards to protect public health and the environment. Many of us are also familiar with the right-wing backlash to these movements—indeed, the devolving of baseline environmental standards and public land management to the state and local level has been a keystone of the political right since at least Ronald Reagan's presidency.

But federalism—the division of authority between state and local governments, on one hand, and the federal government on the other—doesn't have to tilt in one (rightward …

May 4, 2020 by Rachel Micah-Jones, Matt Shudtz
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This is an excerpt from an op-ed originally published in the Baltimore Sun. You can read the full op-ed here.

President Donald Trump invoked the Defense Production Act to order meat and poultry plants to continue operating despite COVID-19 outbreaks, exposing Maryland's poultry workers to enormous risks. Poultry processors haven't demonstrated they're able to keep workers safe and healthy, but they know that many of these low-wage workers will be forced to return. To top it all off, one of the president's goals with this order was to provide legal immunity to companies, so that they can't be sued by employees who are infected as a result of unsafe working conditions.

All the risks cascade down onto the workers. Many are from immigrant backgrounds and don't speak English. They're also exempted from vital protections, federal relief packages, and can't access COVID-19 treatment and care. We're standing in …

April 30, 2020 by Robert Verchick
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No one really expected FEMA’s leadership of the coronavirus response to be inspiring or even, to put it bluntly, moderately competent. Still, I’ve been puzzled by several reports from state leaders and others that federal authorities have been confiscating purchased medical supplies without explanation or, at least in one case, compensation.

I don’t mean situations where a federal agency outbids someone or orders a vendor to sell to the federal government instead. That happens, too, and the practice is controversial. I’m talking about instances in which federal officials show up unannounced at a warehouse or a port and physically seize crates of medical gear that had been on their way to some needy hospital or test center that had paid or agreed to pay for them. The agent flashes a badge, the goods are trucked out, and no one knows where they go …

April 30, 2020 by Michael C. Duff
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Update: The president's order has issued. I now have doubt as to whether the Defense Production Act provides immunity to tort actions (if that was the plan) to parties bound by it outside the context of military contractors. See In Re Aircraft Crash Lit. Frederick, Md., 752 F. Supp. 1326, 1330 n.2 (S.D. Ohio 1990); see In Re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 843 n.27 (E.D.N.Y. 1984). As we used to say back in my ice hockey days, this could be a donnybrook.


When I was a young whipper-snapper, an airline supervisor once ordered me to put my rain gear on and enter an airplane baggage compartment into which "lavatory fluid" had discharged due to a malfunction. I told him to pound sand. That memory popped into my head when I read that the president was ordering …

April 27, 2020 by Katie Tracy
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Tomorrow, April 28, is Workers' Memorial Day, a day the labor movement established to mourn workers killed on the job and to renew the fight for the living. This year, as the coronavirus pandemic grinds on, taking its toll on workers and their families, we’re reminded more than ever of how critical it is to guarantee all workers the right to a safe and healthy workplace.

Even before COVID-19, a typical day in the United States saw 14 workers killed on the job – hardworking people who set out for work, never to return home. In 2018, 5,250 workers – one worker every 100 minutes – died on the job. Black and Latinx workers were hit hardest in 2018, with a 16 percent increase from 2017 in black worker deaths and a 6 percent increase in Latinx worker deaths. As in years past, tens of thousands of additional …

April 21, 2020 by Michael C. Duff
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Editor's Note: With COVID-19 cases contracted at work on the rise, labor and employment attorneys, businesses, advocates, and workers are all wondering if their state’s workers’ compensation law will apply, and alternatively, if an ill worker could file a lawsuit against their employer. The answers to these questions are not simple, as workers’ compensation laws vary by state, and when it comes to occupational diseases, the applicability of workers’ comp is often even more complicated.

In a recent post on Workers’ Compensation Law Prof Blog, CPR Member Scholar Michael Duff discusses the so-called workers’ compensation “grand bargain,” under which workers receive no-fault benefits for work-related injuries and illnesses in exchange for giving up their right to file a lawsuit against their employer. In his post, Duff explores the circumstances in which a worker who has contracted COVID-19 at work may still have the right to file …

April 20, 2020 by Katie Tracy
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As the coronavirus pandemic wears on, reports abound of essential frontline workers laboring without such basic protective gear as masks, gloves, soap, or water; with improper distancing between workstations and coworkers; and in workplaces alongside infected colleagues. So far, nearly 4,000 workers have filed complaints with the federal Occupational Safety and Health Administration (OSHA), raising concerns about health and safety conditions inside the workplace. Yet the agency has been largely absent at a time it is most needed.

Shamefully, as COVID-19 illnesses rise in slaughterhouses, grocery stores, hospitals, and other worksites across the nation, the agency has chosen to go against its very mission of protecting America’s workers, ignoring calls to adopt emergency standards and rolling back its enforcement efforts.

Since early March, unions, advocates, and workers have called on OSHA to take immediate action to adopt an emergency temporary standard and subsequent permanent standard …

April 9, 2020 by Katie Tracy
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Today, the Center for Progressive Reform joined the National Council for Occupational Safety and Health in calling on the U.S. Centers for Diseases Control and Prevention (CDC) to retract its outrageous guidance that allows employers to send workers potentially exposed to coronavirus back to work without any guaranteed protections. This flawed guidance is weaker than previous guidance, fails to protect workers, and is not based on scientific evidence.

“CDC’s flawed guidance contradicts its previous guidance for businesses and its current recommendations for members of the public who’ve been exposed to coronavirus, which is to quarantine for 14 days after a potential exposure,” said Matthew Shudtz, Executive Director at the Center for Progressive Reform. “Forcing our nation’s essential workers to remain on the job after exposure poses great risks, not just to their health, but to their coworkers, their families, and the community at …

April 3, 2020 by Katie Tracy
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Amazon's response to the coronavirus pandemic is the latest in a long line of instances where the company has put profit ahead of the health, safety, and economic well-being of its workforce. According to Amazon employees at its fulfillment centers and Whole Foods stores, the company is refusing to provide even basic health and safety protections for workers in jobs where they could be exposed to coronavirus.

In Staten Island, New York, several Amazon warehouse workers organized a walk-out after multiple co-workers tested positive for COVID-19 and the company refused to shut down the facility for deep cleaning. In response, the company fired Christian Smalls, an employee who participated in and helped organize the protest. Amazon claims it fired Smalls because the company had put him on paid leave for 14 days and asked him to remain home in self-quarantine after he was exposed to another Amazon …

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