The Stimulus 'Liability' Debate: Don't Forget Texas Elective Workers' Compensation

Michael C. Duff

May 14, 2020

Listening in on Tuesday's Senate Hearing on Corporate Liability During the Coronavirus Pandemic – you can find the video here and do a text search for "workers' compensation" – I was especially pleased to hear workers' compensation immunity discussed at 1:14:20 to about 1:14:50. Sen. Sheldon Whitehouse of Rhode Island specifically asked whether blanket corporate immunity would constitute subsidization of workers' compensation insurers. Witness Professor David Vladeck of Georgetown University Law Center responded that it very well could if workers' compensation were not carved out of the bill. I did not hear anyone contend during the hearing that workers' compensation could not be part of an immunity blanket, which is food for thought.

Coincidentally, I had been reading in The Atlantic as the Senate hearing was commencing an exceptionally good and sobering account of the nearly catastrophic events unfolding in the meatpacking industry. I recommend the article to you generally, and there is one point made within it that warrants reflection.

Even if immunity conferred as a precondition for passing the next round of stimulus contains "only" stiff tort limitations, consider the situation potentially faced by certain Texas meatpacking employees (the article discusses the Tyson beef slaughterhouse in Amarillo, Texas). In the words of Eric Schlosser, author of The Atlantic piece (I do not necessarily vouch for the legal accuracy of everything contained in the excerpt, but the facts are clear enough):

In Texas, where private employers are not required to carry workers' compensation insurance, Tyson has opted out of the state system completely.

When a worker gets injured at the Tyson beef slaughterhouse in Amarillo, Texas, in order to get medical care from the company, that person must first sign a document saying:

"I hereby voluntarily release, waive, and forever give up all my rights, claims, and causes of action, whether now existing or arising in the future, that I may have against the company, Tyson Foods, Inc., and their parent, subsidiary and affiliated companies and all of their officers, directors, owners, employees, and agents that arise out of or are in any way related to injuries (including a subsequent or resulting death) sustained in the course of my employment with the company."

If the injured worker doesn't sign the waiver, that person can be fired—and has to file a lawsuit against Tyson to get any payments for medical bills. It's a fight that an immigrant worker is unlikely to win against a multinational corporation with annual revenues of about $40 billion.

If the Texas immigrant meatpacking worker would have had a "difficult" time prevailing in a tort suit before blanket immunity, the worker would have no possibility of prevailing "post-blanket." Outcome? No possibility of workers' compensation or tort remedies. That's got to offend someone's constitution.

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