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The New York State Domestic Workers Bill of Rights, the first in the United States, becomes law today — Nov. 29.

By amending the Human Rights Law, Workers Compensation Law and Labor Law, the state government gave the more than 200,000 domestic workers in the metropolitan area — housekeepers, nannies, home aides — a package of limited rights and benefits previously denied them.
Limited Protection

The measure provides statutory protections from harassment, mandates for overtime pay, a six-day (or shorter) workweek and three paid vacation days after the first year on the job even if there is only one employee in a household instead of four under prior law. The changes will extend disability benefits to employees who work fewer than 40 hours per week. While the new laws apply to employees who do some work on an ad hoc, or casual, basis, they do not extend to the teenager who baby-sits once in a while or the person hired to clean out closets every spring. The Human Rights Law will prohibit “unwelcome sexual advances,” seeking “sexual favors,” or verbal and/or physical conduct which tends to be a condition of employment or creates an “intimidating, hostile or offensive work environment.”

Overtime pay is defined as one and one-half times the hourly pay over 40 hours; for live-in domestic workers (who may be present to assist elderly or disabled persons day and night), it is 44 hours. In barring a seven-day work week, the Bill of Rights does not require, but does encourage, allowing that that the day off be the worker’s Sabbath or day of worship.

The bill of rights protects workers against discrimination on the basis of sex, race, national origin and religion, but does not extend that to some of New York’s other protected classes, such as those discriminated against because of age, sexual orientation or marital status. Nor is the Bill of Rights about discrimination in hiring, salary issues or other conditions; it covers only what is specified.
A Change in Attitude

Organizers working with a coalition of non-profit groups fought for paid sick leave or sick days, vacation days and severance pay but won none of those benefits. While they did not succeed in getting their entire agenda passed, the changes do represent some shift in attitudes toward those who work in other people’s homes, almost all of whom are minority women employed at the lowest pay scales, often working under difficult and demeaning conditions. According to Joycelynn Campbell, organizing coordinator for Domestic Workers United, 93 percent of domestic workers are women, 95 percent are women of color and 99 percent are immigrants, mostly from Caribbean and Latin American countries.

The new benefits are minimal compared to those that unions regularly negotiate for their members, and are less than what was sought by the 10-year old, non-profit organization Domestic Workers United. Union membership and collective bargaining are explicitly unavailable to domestic workers. The Bill of Rights requires an investigation into the feasibility of a union being established and recognized by the state Employment Relations Act, which applies to private employment.

According to the domestic workers law, the labor department was to examine and report on whether an employee organization could be formed in accordance with the State Labor Relations Act; how bargaining units could be formed; whether there are issues unique to the domestic work context; and alternative frameworks for collective organization., and the unionizing portion has not been released. So far, the state Department of Labor has not authorized unions for these workers.

A report has, however, been issued rejecting several other demands. In addition to the collective bargaining issues, the legislature directed the Department of Labor to consider sick leave, notice of termination and severance pay. All were rejected.
Getting the Word Out

Whether and how covered employees will be made aware of the protections and benefits without a union may depend in part on the good will of and information provided by their employers. Information on the workers’ new rights will be available on Domestic Workers United website. The group is considering using billboards to get the information out.

Enforcement will require workers to file complaints about violations with the state, but it may be that, even when employers are not in compliance, employees will be reluctant to make formal complaints or will remain unaware of their options.

This could be a particular issue for the affected workers who are undocumented immigrants. The legislation does not address them or their employers. Campbell of Domestic Workers United said, “Immigration is not an issue. Our members are not afraid of speaking out. They have been educated about their rights, and these are workers’ human rights.”

Legal representation is available pro bono through NELA, the National Employment Law Association and today, as law goes into effect, Domestic Workers United will announce the opening of its legal clinic at 1201 Broadway (Suite 807-8) in Manhattan.

A complaint of harassment or abuse filed with the Department of Labor could expose the employer to further filings if they have, for example, not paid unemployment and disability insurance or workers’ compensation, as well as state and federal taxes.
Emily Jane Goodman is a New York State Supreme Court Justice

It didn’t take very long for the Department of Labor and Industries to calculate 2011’s workers’ compensation rates. You may remember the imbroglio that ensued after L&I declined to issue its proposed 2011 rates due to the changes that Initiative 1082 may impose (calculating premiums based on employee payroll, as opposed to hours worked). But since I-1082 was defeated last week L&I wasted no time in issuing the verdict: a 12 percent average rate increase. This follows the 2010 rate increase of 7.6 percent.

The new rate takes effect on January 1, but the Department will hold public hearings in January to gather comments before adopting the 12 percent as a permanent rate.

This news comes just weeks after the Employment Security Department announced a roughly 40 percent increase in unemployment insurance for 2011, after a 40 percent increase from 2009-2010. So, all-in-all, a rough stretch for the business community.

Premises liability is a broad area of the law that involves a person being injured or harmed in some way due to a defect that exists on a property. Examples of premises liability cases include slips and falls, or trips and falls, due to snow and ice; a slippery surface; a defect such as a  pothole, broken stair, cracked or uneven sidewalk; falling objects; security issues or other defective conditions.

The general rule regarding liability in a defective premise case is that a duty of reasonable care is owed to persons utilizing the property. Generally speaking, liability for an injury due to a defective premises does not depend on just ownership or title to the affected property but on possession, care, custody or control. The standard of care that is required of the possessor of land and the duty to warn depends upon the classification of the injured party. There is a limited duty owed to a trespasser, a duty owed to children where an attractive nuisance is involved is much greater and different duties of care are owed to licensees, guests, and business invitees.

To hold a defendant liable in a defective premises or negligence case, a plaintiff must prove by a preponderance of evidence: (1) The existence  of defect; (2) That the defendant knew or in the exercise of reasonable care should have known about the defective condition; (3) That the defect existed for such a length of time that the defendant should have, in the exercise of reasonable care, discovered and remedied this condition and (4) That the plaintiff’s injuries and resulting damages are casually related to the defective condition.

One of the major issues in premise liability cases is constructive notice. Constructive notice is not actual notice but notice that the Defendant should or could have known which can be proven through the use of circumstantial evidence. In order to determine liability in a defective premises or premises liability case there are a number of issues that should be investigated:

The Presence of Icy or Slippery Outdoor Stairs or Surfaces:

The mere presence of snow and ice does not necessarily establish negligence on the part of the owner or possessor of the property. In Connecticut, the general rule is that a property owner may wait until the end of a storm and a reasonable time thereafter before removing the snow and ice from outside steps, walkways or surfaces. A weather issue or ice and snow contributing or causing a fall could be the basis of an allegation of negligence.

Property Defects or Building Code Violations:

There could be a one of a number of building code violations which cause or contribute to the fall or accident. A building code expert or engineer could render a decision as to the correctness of the stair length or depth, the type, dimensions and locations of the handrails or other variations of code requirements. If the steps are improperly built or are not up to the standards of the building code then this could give rise to an allegation of negligence.

Defective or Poorly Maintained Surfaces:

If stairs or other surfaces that are defective are poorly maintained or are not kept in a good state of repair these situations might be grounds for allegations of negligence.

It is important if you are involved in a slip and fall or other type of premises liability accident case that all of the potential causes of the accident and the corresponding allegations of negligence be properly investigated and developed so that your rights are protected.

ALBANY, N.Y., Nov. 8 — The Property Casualty Insurers Association of America issued the following news release:

In a letter to the New York State Workers Compensation Board, the Property Casualty Insurers Association of America (PCI) expressed concern that proposed changes to the workers compensation medical, podiatry and chiropractic fee schedule could have unintended negative consequences for the state’s no-fault automobile system.

New York’s workers compensation fee schedule is applicable to services rendered under no-fault coverage. As result, the proposed fee schedule changes, which carry increases for certain services such as a 30 percent increase in Evaluation & Management fees and changes to the way chiropractic services are billed which will result in increases of between 30-42 percent, would impact auto insurance rates.

“Although some updating of the workers compensation fee schedule may be warranted, the proposed changes could lead to significant cost increases for motorists,” said Kristina Baldwin, assistant vice president for PCI. “In addition to potentially increasing auto insurance costs, increasing fees required to be paid to medical care providers may make New York’s no-fault system even more attractive as a target for fraud, thereby exacerbating the problems plaguing the system. The no-fault system is already fraught with fraud and abuse, much of which is perpetrated by medical providers. Against this backdrop, an increase in certain medical provider fees raises great concern.”

In the letter to the Workers Compensation Board, Baldwin highlights how medical claim costs have skyrocketed for auto insurance. Since the end of 2004, the average amount paid for medical claims related to auto accidents in New York rose by 60.4 percent, 31.2 points faster that the 29.2 growth rate of all other no-fault states and nearly 42 points faster than the 18.6 percent growth rate in the consumer price index cost of medical goods and services found in the region.

“We attribute much of the disparity in no-fault medical costs to fraud,” said Baldwin. “Related to the fraud problem is our concern that the no-fault system does not have the variety of cost containment tools found in the workers compensation system to guard against overutilization, which is a highly prevalent problem in the no-fault system. We are urging the board to take into consideration that the dramatic increases in the workers compensation fee schedule may have a real impact on no-fault costs.”

More women and girls than ever are year-round, multisport athletes, leading to overuse injuries that have reached astronomical levels.

More than 20,000 high school girls suffer a serious sports-related knee injury each year in the United States, according to the Chicago-based Children’s Memorial Institute for Sports Medicine. Girls are up to seven times more likely to injure their anterior cruciate ligament (ACL) than boys in similar sports.

“The number of knee injuries among young female athletes has reached epidemic proportions,” said Dr. James Elliott, an orthopedic surgeon at Ortho Montana, which is affiliated with St. Vincent Healthcare. “We are seeing players from all the high school soccer, volleyball and basketball teams. The injuries cut across every discipline.”

Dr. Peter Millett, an orthopedic surgeon and a partner at the internationally-renowned Steadman Clinic in Colorado, underscores Elliott’s message, saying ACL tears in young women and adolescents are reaching “alarming numbers.” Millett has served as a team physician for the U.S. Ski Team and a consultant to the Montreal Canadiens, an NHL team. He is a member of the steering committee for the national campaign called “STOP Sports Injuries.” The goal is to better understand, prevent, and treat sports injuries in youth.

For one Billings physician, it isn’t that complicated.

“With year-round and multisport participation, many of our young athletes do not have time for recuperation, and injury potential increases dramatically,” said Dr. Michael Willis, orthopedic surgeon at Billings Clinic. “Those injuries can be lessened through appropriate seasonal adaptation, adequate nutrition and by paying attention to signs and symptoms of overuse.”

Vicki Carle, Skyview High School volleyball coach, said she would build into the school district’s athletic calendar at least two weeks of down time between sports so the young athletes could rest.

“They just go from one sport to another to another,” Carle said. “The underlying pressure pushes kids to too much activity. … balance is key.”

The increase in knee injuries has catapulted the acronym ACL into the daily lexicon, but what is it?

The ACL is one of four major ligaments of the knee. It prevents excessive motion of the knee joint. Patients say it felt like their knee “giving out.”

Why women are more susceptible to ACL tears in unclear. But many orthopedic surgeons seem to agree the underlying reasons are at least five-fold:

Year-round participation without time for rest and repair could lead to overuse injuries related to fatigue and “wear and tear.”

The gap between young men and women participating in sports has significantly diminished, likely the effect of the passage of Title IX in 1972, which mandated equal funding to men’s and women’s athletics in federally funded educational facilities.

Girls tend to have less neuromuscular control of knee motion than boys while performing certain athletic tasks, such as landing from a jump or suddenly changing direction.

The speed, power and intensity with which female athletes are playing have dramatically increased.

There are numerous anatomical and hormonal differences between men and women.

Less than one-third of all reported ACL injuries involve contact from an outside force such as an opposing player or goalpost, Elliott said. Most are non-contact injuries, the result of a sudden change in direction, cutting movements, landing from a jump with inadequate knee and hip flexion or a lapse of concentration.

More people are hurt playing soccer, in part because of its increasing popularity, according to the Archives of Internal Medicine. Between 2000 and 2006, the number of female soccer players around the world increased by 19 percent to 26 million.

Young women are also tearing their ACLs playing basketball, volleyball, participating in physical education, running track or even during a pick-up game at open gym.

Damage to body and mind

For some, an ACL injury can be a life-changing event. Such injuries often require surgery and/or months of rehabilitation and physical therapy. For many, it means sitting on the sidelines for an entire season and an incomplete recovery. College scholarships can hang in the balance as do some of the young athlete’s dreams of becoming the next Mia Hamm. The mental and emotional effects can be as harmful as the injury.

Most injured athletes will go through a grieving process that involves denial, anger, bargaining, depression and acceptance. “As a surgeon, I try and help them along this road and try to get them to acceptance as quickly as I can,” Millett said.

Young athletes who are talented enough to possibly earn a scholarship at the college level often have much of their identity wrapped up in being an athlete, said Dr. Robyn Odegaard, founder and president of the New Jersey-based Champion Performance Development. She is a sport psychologist and team development consultant.

“When an injury sidelines them, particularly when it means they may not play at the next level, they are likely to start to question who they are as a person. If I am not a star volleyball player, who am I?” Odegaard said.

This issue manifests itself as general anxiety, melancholy or depression. Left untreated, these concerns can negatively affect academic performance, relationships and even the athlete’s willingness to perform the rehabilitation essential to return to the game, Odegaard said.

It may take an athlete eight months to fully recover from an ACL tear and subsequent surgery and perhaps a year or longer before one’s performance returns to top form, said Millett. Most surgical results allow athletes to return to play.

“Many turn this adversity into a positive and find strength in their injury and recovery that translates into deeper desire, a stronger work ethic and performance improvements,” Millett said. “This really is amazing to see when this type of transformative determination occurs.”

Others who may not be able to get back to sports are inspired after their injury and channel their energy into academics and have become orthopedic surgeons, sports medicine doctors, physical therapists or athletic trainers.

The personality of the injured athlete will play a role, said C. Craig Stewart, a professor in the Department of Health and Human Development at Montana State University in Bozeman. “The more competitive an individual is, the more they are likely to attack rehabilitation as they did competition,” he said. “However, like competition, they need strong, knowledgeable support from a coach, trainer and teammates.”

Though many of the factors associated with the incidence of ACL tears in female athletes are not able to be modified, biomechanical research has shown that the incidence and risk can be reduced by incorporating neuromuscular retraining programs for ACL prevention, according to Willis.

The long-term follow-up of programs that have been in place for greater than 10 years shows a significant reduction in ACL tears in women who have been through the program, but the rates remain higher than in male counterparts. The data also support initiation of ACL prevention for athletes in seventh to ninth grade for optimum effect. These programs are readily available in Billings and have largely been employed in school athletics as a routine warm up.

“For those of us in sports medicine, we hope that long-term results locally will reflect those seen nationally,” Willis said. “Unfortunately, young women in sports remain at increased risk, but we would never discourage participation in sports; the long-term benefits certainly outweigh the risk of injury.”

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