Friday, December 29, 2017

Labour & Pop Culture: Growing mockery of austerity

There has been a shift in public policy debate over the past few years away from consensus that austerity is a viable economic strategy. There was never full consensus but certainly media coverage privileged austerity.

Now there is legitimate (sometimes even informed) debate about issues such as the minimum wage and government deficits. One interesting development is the increasing degree of public mockery aimed at (1) austerity fan-boys and (2) biased media reporting. Often this takes the form of fact-checking memes like the one on the right.

An example, although not the funniest one I’ve seen, is a recent Beaverton spoof of a news-segment debating Ontario’s minimum wage increase.

The pro side is represented by a reasoned and articulate poverty activist while one of the hosts curries favour with a Joe-Sixpack guest who is given equal airtime despite having clearly stupid opinions. It is chillingly like watching local news. Here is another, funnier article along the same lines.

While I couldn't find any research on the topic, my impression is that when your talking points become punch-lines (e.g., tidewater, war on Christmas), your side is losing.

Greater debate is also occurring in more reputable alternative news sources. The magazine Alberta Views has recently commenced a new feature (“dialogues”) to trigger meaningful public policy debate. Two authors are given a topic, write opposing position pieces and then short rebuttals. These are then sent to a panel of interested readers for analysis.

These dialogues will run every issue of 2018 and include topics such as the rightful role of government, the pros and cons of debt, urban vs rural virtues, the right to strike, costs vs benefits of local food, and oil sands: expand or shrink.

The two that I have seen so far have been interesting: when traditionally leftist and rightist arguments are pitted against one another, the leftist argument clearly and decisively wins. I’m not sure this kind of debate will affect individual’s opinions. But transferring into biting satire, such debates may shift the public discourse and opinion. 

-- Bob Barnetson

Tuesday, December 26, 2017

Research: Laid-off oil-patch workers in Kelowna

The Journal of Rural and Community Development just published an interesting article on the experiences of laid-off oilpatch workers who reside in BC’s Okanagan Valley. Many of these workers commuted to jobs in Alberta’s north prior to layoff.

Relative deprivation vs. transition: Rehabilitating laid-off young oil workers in Kelowna and beyond” explores the impact of unemployment on these workers and their families.

Among the notable findings are the significant financial impact (both real and perceived) of unemployment. These effects are compounded by poor financial planning (sometimes compounded by substance abuse) and limited skill transfer to jobs available in the local economy (which was oversupplied with workers).

This paper makes a useful contribution to the literature on mobile work by looking at the effect of mobile work on sending communities. It extends research that to date, has largely focused on Atlantic Canada, such as Nelson Ferguson’s article on Cape Breton. It also extends our understanding of the culture of oil-and-gas workers, building upon Dan Houser’s chapter on rig-hand culture and safety in Alberta.

-- Bob Barnetson

Friday, December 22, 2017

Labour & Pop Culture: Christmas for Cowboys

This week’s holiday installment of Labour & Pop Culture is “Christmas for Cowboys” by John Denver. 

This song paints a lovely picture of range-work as a way to highlight the differences between urban and rural lifestyles and values. For example:
Back in the city they have different ways,
football and eggnog and Christmas parades.
I'll take the blanket, I'll take the reins,
Christmas for cowboys and wide-open plains.
I’ve spent part of my sabbatical reading more about rural politics. The most interesting piece I’ve come across is the book “The Politics of Resentment: Rural Consciousness in Wisconsin and the Rise of Scott Walker” by Katherine Cramer which interrogates the rural-urban divide in Wisconsin.

Cramer suggests the existence of a rural political consciousness. This consciousness entails “a strong sense of identity as a rural person combined with the sense that rural areas do not get their fair share of power, respect, or resources and that rural folks prefer lifestyles that differ fundamentally from those of city people (p.89).”

This approach to rural politics (as well as the role of resentment in political behaviour) may well be useful in understanding the ongoing reaction of many rural residents in Alberta to Bill 6 (which granted paid farmworkers basic employment rights). My plan in the new year is to see the degree to which this theory jives with the comments made by petitioners against Bill 6.

I couldn't find a decent video of the John Denver version of this song (it dates back to about 1975, I think). Jimmy Rankin did a nice version (starts at 2:45) in the clip below.

Tall in the saddle, we spend Christmas Day,
driving the cattle on the snow covered-plains.
All of the good gifts given today,
ours is the sky and the wide open range.

Back in the city they have different ways,
football and eggnog and Christmas parades.
I'll take the blanket, I'll take the reins,
Christmas for cowboys and wide-open plains.

A campfire for warmth as we stop for the night,
the stars overhead are Christmas tree lights.
The wind sings a hymn as we bow down to pray,
Christmas for cowboys and wide-open plains.

Tall in the saddle we spend Christmas Day,
driving the cattle on the snow-covered plains.
So many gifts have been opened today,
ours is the sky and the wide open range.
It's Christmas for cowboys and wide open plains.

-- Bob Barnetson

Tuesday, December 19, 2017

Bill 30 debate a disaster for UCP

Last week, Alberta finally passed Bill 30 (An Act to Protect the Health and Well-being of Working Albertans). I’ve written about the changes to the OHS Act here and here as well as the changes to workers’ compensation here, here, and here.

The debate about Bill 30 was pretty boring until last Tuesday. The United Conservative Party (UCP) spent most of its time trying to doom Bill 30 to a slow death in committee. You read see the debate in Hansard. The UCP advanced several arguments.

Not Enough Consultation
Basically the opposition argued that there hadn’t been enough consultation about the Bill. This ignores that the OHS consultation included 1,300 online surveys, 90 written submissions, 200 stakeholders participating in face-to-face consultations. The WCB consultation went on for more than a year and included 1,700 questionnaires, 200 written submissions, 67 workbook responses, hundreds of stakeholders in various face-to-face consultations, and then the 60 responses to the WCB review panel's report.

A variant on this critique was that there is no need to rush Bill 3 through. According to UC MLA Mike Ellis:
As the minister so enjoys pointing out, the OH and S Act came out when Wayne Gretzky was a rookie and when cellphones did not exist. Syncrude had opened its mine. Minister, what is the rush? As for the WCB, the minister kindly pointed out that the last comprehensive review of the act occurred 15 years ago. Once again, is there a need to rush and force it through in days? I think not, Mr. Speaker. (p. 2217).
It is a bit rich for a former Tory MLA to claim there is need to hurry modernizing the OHS Act (which isn’t working very well) after his former party left it largely untouched since 1976. Those who depend upon the Act to protect them at work might well want some action after 41 years of being maimed and killed on the job. Premier Notley basically said as much during the debate:
This is about the members opposite not wanting to take these important steps forward to protect workers, to protect their families, and to keep them safe. That is the decision that is being made here right now by the members opposite as they engage in these ridiculous conversations about the need to delay. (p. 2249)
Overall, this line of attack was profoundly underwhelming and runs contrary to the facts.

Safety Costs Too Much
The opposition then made several attempts to say that, “sure, safety is important, but who will think about the bottom line!?!” For example, UCP MLA Grant Hunter stated:
Safety measures sure can be expensive, and joint committees are no exception. All training for committee members is required by this bill to be covered by the employer. Workplace training for employees is usually covered at the expense of the employer, primarily because the knowledge and skills acquired will go to the long-term benefit of the business. However, committee members are entitled to an annual maximum of 16 hours of training at the expense of the employer for a committee that will only reduce workplace efficiency and fail to improve the safety of the workers. (p. 2133)
This argument has the virtue of being an honest portrayal of employer objections to safer workplaces. I’m less convinced that trading worker safety for profit is in the public interest or is a good position for a political party to stake out (pro-tip: workers are also voters).

Split the Bill
The UCP complained Bill 30 was too complex for them to understand. Some of their troubles may stem from the UCP’s inability to manage its caucus budget and the resulting layoff of most of their staff. I know how tough it is when you have to do your own research and read legislation yourself.

I do have some sympathy for this argument in that big bills tend to obscure changes. I have much less sympathy for the UCP, given that their party is led by a former Harper cabinet minister and that government used omnibus legislation to ram through changes all the time. Sauce for the goose and all.

Workers Are Stupid
Rather disappointingly, UCP MLA Prasad Panda suggested that asking employers to ensure their workplaces are safe was unfair because workers are stupid:
Now, Madam Speaker, as Forrest Gump used to say, “Stupid is as stupid does.” As much as we want to legislate stupid away, stupid is as stupid does, and accidents will happen on work sites when workers are not paying attention or are not careful and not thinking things through. This Bill 30: the core principle of this bill is that all work-site parties have a responsibility for the health and safety of all workers. I completely agree with that. However, Bill 30 puts significantly more responsibility on employers. (p.2276)
Okay, wow. I had thought this would be the low point in debate. But then shit got real for the UCP.

UCP House Leader Sacks Worker for Complaining About Sexual Harassment
Last Tuesday, the Edmonton Journal ran a story about UC House Leader Jason Nixon. A 2008 BC Human Rights Tribunal had found that one of Nixon’s employees at a safety company was sexually harassed on the job in 2005. When she complained, Nixon (eventually) terminated her employment. She was awarded $32,000 in damages.

The details of the harassment are awful. The harasser watched porn in front of victim. He slapped her on the butt and told her to dress sexier. And he offered her dope, lingere, and new tires in exchange for sex (the good ole boy trifecta).

Nixon then fired the single mom of three just days before Christmas and sent her termination letter to the harasser. And he declined to participate in the human rights case. Beneath these facts, there is a complex subcontracting arrangement in the background that resulted in Nixon’s company being pressured to fire the victim. So basically profit trumped protecting the worker.

The #ableg twitter feed went basically insane in its condemnation of Nixon. Here are two illustrative examples:

The NDs also lost no time calling for the UCP to remove Nixon as house leader (the UCP did not) and went after him in Question Period. This response collectively reflects both the heinous nature of Nixon’s behaviour and that Nixon had previously argued against Bill 30 (which includes new protections against harassment).

For example, he stated “The right way to deal with it is to get the industry to address it, to work through their safety associations … and they will do it. They’ve already proven it.” I wonder if Nixon knows what "proof" means?

Reporters grilled Nixon mercilessly about the apparent hypocrisy of arguing against legislation around sexual harassment while (somehow) forgetting his own company's egregious behaviour:
Reporter: Jason, you’ve been convicted by a tribunal, they have found you guilty of firing somebody who was sexually harassed. And that never popped into your head when you talking about the rules on sexual harassment in the House, that’s what you’re telling us today? 
Nixon: No it did not. 
Reporter: It just blanked right out.
Nixon also told the Journal that “Any time we’ve made large advancements on occupational safety, it’s been driven by industry.” This statement is, of course, laughably wrong.

Nixon later attempted to clarify his comments in the Legislature (see p. 2506) However, this scandal was so politically toxic that the UCP decided not to further extend the session with additional debate.

The UCP's unwillingness to further debate Bill 30 (presumably to avoid more political damage) undermines their already weak critique of the Bill. Were there really problems with Bill 30? Or was the UCP just grand-standing on behalf of employers?

Their behaviour suggests the latter. Hopefully voters will remember in 2019 whose side the UCP took when the government tried to improve injury prevention and compensation for Alberta workers.

-- Bob Barnetson

Friday, December 15, 2017

Labour & Pop Culture: James Larkin

This week’s installment of Labour & Pop Culture is “James Larkin” by Christy Moore. The song chronicles a period of revolution in Irish history. It begins with James Larkin, a trade union organizer who coined the phrase "A fair day's work for a fair day's pay.” A 1913 union recognition strike for unskilled tram-way operators triggered an enormous lockout by employers and a dispute that lasted 7 months.

James Connelly was an important union figure during this time, who was also a leading republican and sought to establish an independent and socialist Ireland. His views included supporting Germany and opposing the conscription of Irish men into the British Army.

Matters came to a head in April of 1916 with the Easter rising. Connelly was eventually shot for his part in the rebellion. Part of this story behind this song has been dramatized in a 2016 Netflix move entitled Rebellion.

This song focuses on the harsh class system that affected Irish workers. This arrangement was a part of the historic exploitation of the Irish by English interests. Christy Moore has written a number of related songs, including this lovely one about James Connelly.

In Dublin City in 1914 the boss was rich and the poor 
Were slaves
The women working and the children hungry then on came
Larkin like a mighty wave
The workers cringed when the boss man thundered seventy
Hours was their weekly chore
They asked for little and less was granted lest getting
Little they'd asked for more

Then came Larkin in 1914 a mighty man with a mighty
The voice of labour the voice of justice and he was
Gifted, he was young
God sent Larkin in 1914 a labor man with a union tongue
He raised the workers and gave them courage he was
Their hero and a workers son

It was in August the boss man told us no union man for
Them could work
We stood by Larkin and told the boss man we'd fight or
Die but we'd never shirk
Eight months we fought eight months we starved we stood
By Larkin through thick and thin
But foodless homes and the crying children, they broke
Our hearts and we could not win

When Larkin left us we seemed defeated the night was
Black for the working man
But on came Connolly came with new hope and counsel his
Motto was we'll rise again
In 1916 in Dublin City the English army burnt our town
They shelled the buildings and shot our leaders the
Harp was buried beneath the crown

They shot Mcdermott and Pearse and Plunkett they shot
Mcdonagh Ceannt and Clarke the brave
From bleak Kilmanham they took their bodies to Arbour
Hill to a quicklime grave
Last of all of the seven leaders they shot down James
The voice of labour the voice of justice gave his life
That we might be free

-- Bob Barnetson

Tuesday, December 12, 2017

So why are women under-represented in construction?

Last week, CBC ran an article with the interesting headline, “Why has the number of Alberta women in trades stagnatedfor a decade?” This is an important question given the high salaries and extreme gender segregation in these occupations. This dynamic is a factor in Alberta’s large female wage-gap.

Unfortunately, the article doesn't deliver any answers. Instead, we get the usual “more awareness” spiel leavened with a bit of (soft-pedaled) “misogynist workplace culture”. The article then transitions into focusing on programs promoting women in trades. That these programs have made no impact on aggregated female participation rates is totally ignored.

My colleague Jason Foster and I recently published a study looking at the participation of traditionally under-represented groups in Alberta construction occupations from 2003 to 2014. Our interest was piqued by a 2007 joint government-industry strategy to address shortages of workers in Alberta’s construction industry. Two strategies jumped out at us:
  1. Encouraging traditionally under-represented groups (female, immigrant, Indigenous, and young workers) to join the industry, and
  2. Encouraging the federal government to increase employer access to temporary foreign workers (TFWs).

The absence of any meaningful evaluation of this strategy was also notable so we pulled StatCan data on construction occupation and CIC data on TFWs. What we found was:
  • Employment in construction occupations grew by 50% between 2003 and 2014 to 369,000, although there was significant year-to-year variation (the industry is cyclical).
  • Men held 93.6% of jobs in construction occupations on average (this varies +/-1%), mostly by non-immigrant, non-Indigenous men over age 25.
  • The overall share of employment by most traditionally under-represented groups maintained their share of employment during this period (absolute numbers rose). You can see this visually depicted in Figure 2 below.
  • The share of employment of TFWs grew significantly and most TFWs in construction occupations are men.

Figure 2 shows two other notable things. First, immigrants’ share of employment jumped during the boom of 2007 and 2012 while women’s share jumped during the 2007 boom. In both cases, these groups lost ground during the bust. Second, TFWs saw a similar pattern but increases and decreases are delayed.

Figure 3 looks at the experience of women more closely. The thick grey line shows overall year-over-year employment change (which is also basically the male line). The diamond-line shows that women experience more volatility than men: during booms their employment jumps more and, during busts, their employment declines more.

 Figure 5 looks at the experiences of TFWs. We had to re-scale the figures (note the scale on the left side of the figure) because the TFW changes are so extreme that, if we tried to plot women and TFWs on the same figure, the size of the TFW effect makes it hard to appreciate the experience of women.

Basically, employers hired lots of (male) TFWs during the booms. Looking back at Figure 2, note that proportion of TFWs rises over the period the period.

At the risk of over simplifying the conclusions, what this suggests to us is that:
  1. Employers continue to prefer to hire men and hire male TFWs when male Canadians are not available.
  2. The decision by the federal Harper government to relax the rules around TFWs (Jason Kenney was minister responsible) facilitated this employer behaviour.
  3. Had employers not been given access to more male workers by the feds, they might well have hired more traditionally under-represented groups (clearly there were such workers available).

This dynamic is not surprising: employers look to minimize costs. Changing workplace practices and cultures to make those workplaces more attractive to women is expensive. Instead, they naturally took the path of least resistance and hired more men. When the downturn came, the small gains women made were erased.

A knock-on effect is that (male) TFWs have now become a normal part of the construction labour force, taking positions that (absent TFWs) would likely be filled by Canadian women and other traditionally under-represented groups.

Coming back to the 2007 provincial labour force strategy, it mostly failed to attain its objectives. There are more workers from traditionally disadvantaged groups in the construction sector, but their share of employment is stagnant.

This failure likely reflects that goal of increasing participation was undermined by the goal of increasing access to TFWs. Faced with a choice between more male workers and increasing diversity (which increases cost), employers chose the cheapest option.

This, in turn, highlights that expecting employers to diversify their workforces because it is the right thing to do is unrealistic: employers are responsive to the profit imperative. If governments are seeking more equitable employment outcomes, then they will be forced to regulate industry as part of the solution--like they do in Newfoundland. This would be an appropriate task for the Status of Women Ministry which, so far, has advanced few changes that meaningfully impact Alberta women.

So, to answer the question posed by the CBC, women’s employment in construction is stagnant due to gender discrimination by employers, partly enabled by overly permissive federal immigration policy and partly enabled by the absence of provincial employment equity requirements.

-- Bob Barnetson

Friday, December 8, 2017

Labour & Pop Culture: The Clampdown

This week’s installment of Labour & Pop Culture is “The Clampdown” by the Clash. The clampdown refers to the growing calls in the 1970s for governments to oppress groups (e.g., welfare claimants, striking workers and other agitators) that sought to change the social, economic and moral norms of the UK. 

You’ll recall that the 1970s was the beginning of what became the neoliberal retrenchment led, in the UK, by Margaret Thatcher.

There are lots of worker references in the lyrics. Wearing the “blue and brown” refers to the most common uniform colours of workers and the song talks about the tendency of workers to be co-opted by the system.
You grow up and you calm down
You're working for the clampdown
You start wearing the blue and brown
You're working for the clampdown
So you got someone to boss around
It makes you feel big now
You drift until you brutalize
You made your first kill now
The price of this, suggests the song, is that you essentially sacrifice your life to economically and socially benefit others (essentially capitalists).
The voices in your head are calling
Stop wasting your time, there's nothing coming
Only a fool would think someone could save you
The men at the factory are old and cunning
You don't owe nothing, so boy get running
It's the best years of your life they want to steal
At the end of the song, we hear a call for revolution (whether electoral or political is unclear):
In these days of evil presidentes
Working for the clampdown
But lately one or two has fully paid their due
For working for the clampdown
I picked a Springsteen cover because I can’t stand the Clash. You can suffer through a live version by the Clash here if you want.

Hey, hey!
The kingdom is ransacked
the jewels all taken back
and the chopper descends
they're hidden in the back
with a message on a half-baked tape
with the spool going round
saying I'm back here in this place
and I could cry
and there's smoke you could click on

What are we gonna do now?
Taking off his turban, they said, is this man a Jew?
'Cause they're working for the clampdown
They put up a poster saying we earn more than you!
When we're working for the clampdown
We will teach our twisted speech
To the young believers
We will train our blue-eyed men
To be young believers

The judge said five to ten, but I say double that again
I'm not working for the clampdown
No man born with a living soul
Can be working for the clampdown
Kick over the wall 'cause government's to fall
How can you refuse it?
Let fury have the hour, anger can be power
D'you know that you can use it?

The voices in your head are calling
Stop wasting your time, there's nothing coming
Only a fool would think someone could save you
The men at the factory are old and cunning
You don't owe nothing, so boy get running
It's the best years of your life they want to steal

You grow up and you calm down
You're working for the clampdown
You start wearing the blue and brown
You're working for the clampdown
So you got someone to boss around
It makes you feel big now
You drift until you brutalize
You made your first kill now

In these days of evil presidentes
Working for the clampdown
But lately one or two has fully paid their due
For working for the clampdown
Ha! Gitalong! Gitalong!
Working for the clampdown
Ha! Gitalong! Gitalong!
Working for the clampdown

Yeah I'm working hard in Harrisburg
Working hard in Petersburg
Working for the clampdown
Working for the clampdown
Ha! Gitalong! Gitalong
Begging to be melted down
Gitalong, gitalong
(Work) And I've given away no secrets - ha!
(More work)
(More work)
Who's barmy now?

-- Bob Barnetson

Tuesday, December 5, 2017

Bill 30 and WCB appeals

Continuing with the workers’ compensation changes in Bill 30 (An Act to Protect the Health and Well-being of Working Albertans), today I wanted to examine changes to the structure of the appeal process.

This topic is a long-standing bugbear among WCB claimants who will often note that the process is complex, slow, and seems stacked against them. Many report not bothering to pursue appeals because they view it as a hopeless task. Currently:
  • Workers dissatisfied with decisions about their claims can access two levels of appeals. The Dispute Resolution and Decision Review Body (DRDRB) is an internal review process while the Appeals Commission offers a second, external review of decisions. 
  • Workers can also receive assistance from the Office of the Appeals Advisor, a (notionally) independent service provided to workers by the WCB that focuses on resolving concerns with decisions before they enter the formal appeal process. 
  • Many workers also make complaints about the operation of the system to their MLAs, the provincial ombudsperson, and other government agencies. A recurring (but unverified) stat I’ve heard from constituency office workers is that about one-third of MLA visits are about WCB problems.
The WCB Review Panel found most stakeholders were satisfied with the Appeals Commission’s work. The panel commented:
[M]ost stakeholders conveyed to our Panel that they are largely satisfied with the Appeals Commission and current performance measures seem appropriate. They were considerably less charitable about the DRDRB process. The former is regarded as well-run, independent and impartial. The latter is regarded with suspicion and sometimes outright dismissal as a “waste of time”. (p.120)
About 40% of disputes that reach the Appeal Commission result in a change in the original decision in some way (reversed of varied). This is a pretty high level of error to get through the regular claims management plus the DRDRB appeal processes.

There is also significant attrition of concerns at the DRDRB level (about 75% of DRDRB claims are not appealed further). It is not possible to tell if these have been resolved to the satisfaction of workers or if they just gave up.

Picking up on its theme of the WCB having a culture of denial (of worker claims), the key comment by the Review Panel on the DRDRB’s operation was:
The central analysis right now appears to be, “Was the right decision made in accordance with the rules, based on the facts in this claim?” In a worker-focused system the more appropriate analysis would be, “Are we doing what we can within policy to help this person get the assistance they require in their situation?”

This is an important difference. The former analysis focuses on making sure a decision conforms to a rigid set of rules; if it can’t be shoehorned within the rules then it’s out, and there is no exercise of discretion. The latter analysis focuses on what can be done within the ambit of WCB policy to resolve a person’s concern and get them the help they require. It is all about discretion and nuance and making use of options, while recognizing that a worker’s claim must still fit within the existing statutory framework. 
In keeping with the desired shift to a worker-centered system, the internal review process needs to shift in its cultural approach. This goes for employer account decisions as much as adjudicative claim decisions. (p. 124)
The Review Panel also recommended the establishment of a fair practices office to serve as an ombudsperson for complaints about the operation of the system.

The government seems to have taken these recommendations to heart. Bill 30 established an independent Fair Practices Office to act as an ombudsperson for WCB matters and to provide advice to workers trying to navigate the system. This office will also track trends and perform quality assurance audits.

The Office of the Appeals Advisor will report to the Fair Practices Office to get some additional separation from the WCB. The OAA will also have an expanded mandate to assist small- and medium-sized employers as well as unionized and non-unionized workers.

A Code of Conduct must be established, one function of which will be to outline how WCB staff are expected to act in order to recognize the rights of workers and employers.

Additional changes include:
  • Timeline for reviews and appeals has been extended by a year (to two years) to accommodate the difficult pathway of many workers to an appeal.
  • The role of the WCB at Appeals Commission hearings has been clarified, which should reduce the perception that a worker is facing down both the employer and the WCB during a hearing.
  • The DRDRB and Appeal Commission can order interim relief (i.e., restoration of benefits) while a review or appeal is underway so the worker isn’t being starved while waiting their day in court.
The medical panel process (which is engaged when there is a dispute about a workers’ diagnosis) will also change. Workers will be able to trigger the process if they wish. Medical professionals other than doctors can advise the panel. Workers requiring a medical exam will get to choose the physician they see from a list.

Overall, this is a solid effort to make the WCB appeal system structurally better. A further, non-legislative improvement would be funding worker advocates (e.g., in community groups and worker centres) that already have trusting relationships with workers to help them with their claims. This will remedy the deep (and often well-founded) skepticism of workers to WCB-funded OAA.

-- Bob Barnetson

Monday, December 4, 2017

Bill 30: WCB and Psychological Injuries, Deeming, and RT

Continuing with the workers’ compensation changes in Bill 30 (An Act to Protect the Health and Well-being of Working Albertans), today I wanted to examine the effect on receiving and maintaining compensation. This is a bit of a grab bag so I have broken the post up into sections.

Occupational Diseases
It is often difficult for workers to get occupational diseases accepted by the WCB for compensation. Diseases often have long latency periods, murky causation, and workers sometimes have no idea that they were exposed to a substance that, years later, gives rise to their illness.

For this reason, diseases with clear occupational relationships are sometimes granted presumptive status. Basically, if you have the disease and you worked in the industry (sometimes for a set period of time), your disease is presumed to have arisen from and occurred during work.

Alberta’s list of diseases with presumptive status is determined by cabinet and contained in regulation. This list in regulation has not been meaningfully updated since 1982. Yes, 1982—good job there former Tory cabinet members… . (There have been some changes related to firefighter cancers and PTSD among certain first responders.).

Bill 30 includes a couple of good changes:
  • cabinet has authority to expand the list of first-responder professions for which PTSD is granted presumptive status (this will include correctional officers and dispatchers),
  • a committee will be established to recommend changes around occupational diseases as new evidence emerges, and
  • the Appeals Commission can flag diseases and conditions that may warrant review by this committee.
Overall, these are good changes that will ensure the system stays abreast of changing medical evidence. It is hard to believe that workers have had to wait this long for such a common sense change. The only downside is that the legislation appears to limit presumptive PTSD status to first responders. Other workers (e.g., social workers) will have to still make a claim for PTSD as a psychological injury.

Psychological Injuries
Unfortunately, Bill 30 does not make it easier for workers to receive compensation for psychological injuries sustained at work. At present, workers who wish to file a claim for an injury (such as chronic onset stress) must meet a much higher standard than other kinds of injury (e.g., a laceration). (Note that the test varies by type of psychological injury.)

To have a “regular” injury accepted requires only that an injury arise from and occur during work. This is a low threshold and disputes are assessed using a generous balance-of-probabilities approach. The rules around chronic onset stress claims give you a good idea of how hard psychological injuries are to get accepted (apologies for the length):
Claims for this type of injury are eligible for compensation only when all of the following criteria are met:

· there is a confirmed psychological or psychiatric diagnosis as described in the DSM,

· the work-related events or stressors are the predominant cause of the injury; predominant cause means the prevailing, strongest, chief, or main cause of the chronic onset stress,

· the work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation, and

· there is objective confirmation of the events.

In addition to the duties reasonably expected by the nature of the worker’s occupation, normal pressures and tensions include, for example, interpersonal relations and conflicts, health and safety concerns, union issues, and routine labour relations actions taken by the employer, including workload and deadlines, work evaluation, performance management (discipline), transfers, changes in job duties, lay-offs, demotions, terminations, and reorganizations, to which all workers may be subject from time to time.

Ongoing compensability for chronic onset stress will be accepted when the medical evidence shows that the work or work-related injury is the predominant cause of the current symptoms. (Policy 03-01, Part 2, Application 6, Question 11).
This is basically a "get out of compensation free" card for employers; workers can almost never meet this kind of standard. In its final report, the WCB Review Panel noted about psychological injuries:
[T]he use of special criteria for certain conditions, above and beyond the base “but for” test, effectively creates two classes of injured workers, with one of those classes facing a more uphill battle that the other to access benefits. … Our Panel believes that the WCB should examine its current use of the predominant cause threshold with a view to developing a better way of ensuring that an injury or illness was more likely than not caused by work. (p.84)
This kind of work may well be better left to the WCB to sort out in policy than to address in legislation. Yet, the WCB’s culture of claims denial makes me skeptical that they can be trusted to take such action. This seems like a missed opportunity.

Deeming Wages
Presently, when workers are recovering from an injury and cannot return to their date-of-injury job, they get vocational rehabilitation services. These services vary depending on the worker but the idea is to get workers attached to the labour force and earning some kind of wage to reduce their compensation cost.

Workers who are unable to find a job within a certain time period have their wages “deemed”. Basically the WCB pretends they are earning wages (even if they are unemployed and the job they have been assessed for is not compatible with their job restrictions or doesn’t exist) and claws that amount out of their compensation.

This is deeply unfair (an injured worker recently called it “shitbaggery of the highest order” in a conversation) and is designed to benefit employers by reducing their claims costs, which, in turn, reduces their premiums. (Now you see why I’m skeptical of the WCB’s ability to fairly established criteria around psychological injuries.)

Bill 30 makes it harder for the WCB to deem wages by requiring that “the Board may [deem a worker’s earnings] only after the Board has demonstrated it has made every reasonable effort to support the worker in the worker’s search for suitable employment.” This does not preclude deeming, but it sets some limits around it: “every reasonable effort” is a high bar.

Return to Work Obligation
Bill 30 creates an obligation on employers to re-employ injured workers when they are able to return to their duties. This gives workers greater access to their right to disability accommodation under the Human Rights Act.

At present, workers’ only recourse if their employer sacks them after an injury is a lengthy (~2 years) process with the Human Rights Commission that won’t really provide any remedy. This process profoundly disadvantages injured workers because their injury-related disability disadvantages them in the job market (i.e., they can’t put food on the table because they get no compensation (thanks to deeming) or wages (thanks to the employer’s discrimination)).

If employers illegitimately don’t comply with their RTW obligations (e.g., sacking the worker without reason), the WCB must levy a financial penalty of up to a year’s salary, which can then be turned over to the worker. Employers are also required to continue health benefits for a period of time (which workers may use in addition to their WCB coverage).

This is a significant win for workers, reducing the chance that their employer will simply sack them once they are injured. Together with tighter controls on deeming, this should make things better for injured workers. How well this workers will turn on the degree to which the WCB can change its culture of denial.

-- Bob Barnetson

Friday, December 1, 2017

Bill 30 and WCB benefit changes

Continuing our look at Bill 30 (An Act to Protect the Health and Well-being of Working Albertans), there are a lot of changes to workers’ compensation. Today I wanted to examine some of the changes it makes to financial benefits for claimants.

Presently, workers who are totally disabled (permanently or temporarily) are eligible to receive wage-loss benefits totalling 90% of their net earnings. The definition of earnings includes an insurable earnings cap or $98,700. This means that the WCB will replace $9 of every $10 of lost wages up to $98,700. Any lost wages over $98,700 are not compensated.

Bill 30 retains the 90% wage-loss replacement rate but eliminates the cap. This will be a boon to high-wage earners who have been doubly financially penalized by the cap (getting only 90% of wages and not getting any benefits for income over $98.7k).

It would have been more beneficial for the WCB to provide 100% replacement and keep the cap as this would have better helped lower-wage Albertans (who comprise the majority of injured workers). Helping out the richest injured workers seems like a strange choice for a government that styles itself as socially progressive to make.

Or they could have also done both (100% and no cap) and actually financially compensate all workers for the effect of their injuries… .That said, there were also some adjustments targeting lower-income injured workers.

Workers under 25 who experience a long-term and significant injury (≥50%) can have their income adjusted to the Albertan average. This addresses the situation wherein young workers (who often earn low wages) get stuck with life-time compensation set at absurdly low levels.

Bill 30 also adds a mandatory death benefit of $90.7k in the case of fatalities, levels-out the treatment of widows, and extends benefits to dependent children not living at home to age 25 if enrolled in an educational program. Bill 30 also improves retirement benefits for injured workers, recognizing the effect injury has on their ability to save for retirement.

Perhaps more importantly, the indexing of WCB benefits will track the consumer-price index (CPI). Presently, benefits are indexed at CPI - 0.5%. Under the previous policy, the worse you are injured, the worse the erosion of your benefits is, which is an unconscionable violation of the basic purpose of workers’ compensation. This practice is a legacy of the Tory government and allows benefits to erode over time in terms of purchasing power to the benefit of employers (whose claims costs go down).

Which brings us to an issue angering injured worker advocates: retroactivity.

As far as I can tell, the changes to benefit levels only affect claims that are filed after the changes take effect (between April and September 2018), although the CPI change should affect all claimants going forward.

That is to say, workers whose claims have been adjudicated cannot file for any sort of re-adjudication under the new rules. Are you a 17-year-old who gets permanently and totally injured on McDonald’s wages today? Sorry, you’re stuck with below poverty-line compensation until you die. Did your mom die and now you are 18 and want to go university? Oh well, you’re on your own sister. I appreciate the practical and political difficulty of making changes retro-actively. A saw-off might have been to allow re-adjudication going forward (i.e., allow the new rules to apply to old claims starting on a fixed date).

It may be that the WCB itself will create a process to re-examine old claims, although I think that is a faint hope. I only mention it because the government kicked another item to the WCB to sort out.

Presently, the WCB has been returning surpluses in the accident fund to employers to the tune of hundreds of millions of dollars each year. These surpluses are created (in significant part) by investment earnings from the accident fund, which are greater than the liabilities the fund must meet over the life of the claims the WCB is currently carrying. The Review Panel recommend some ways the surplus might be used to benefit workers and employers:
  • Retained in the fund to further “inflation proof” the Accident Fund and further secure future compensation and benefits for injured workers;
  • Conditional grants to support actions that improve workplace safety;
  • Conditional grants to support research into enhancements of the system;
  • Enhancement of data gathering to support better intelligence on workplace safety and to better inform injury and illness prevention efforts; and
  • Facilitate some stability in employer rates by helping smooth out the step changes that may occur due to our Panel’s other recommendations.
Another option would be to address long-standing disputed claims and apply the benefits improvements set out in Bill 30 to existing claims. Not surprisingly, employers have been seeking continued surplus distributions.

The government essentially followed the last recommendation of the review panel. At least $94 million will be needed annually to offset the cost of additional benefits triggered by Bill 30. But that still leaves $100m (sometimes much more) up for grabs each year.

The government declined to clarify in legislation what should happen to future surpluses.  They have clarified that the purpose of money in the accident fund is intended to create a sustainable and fair system. That said, Bill 30 leaves it up to the WCB to determine how best to proceed.

It may be that the government may have some quiet (or not so quiet) suggestions about how to handle surpluses. Leaving the decision to the WCB insulates the government from any political fall out. It also raises the possibility that historically pro-employer WCB will just keep giving the surpluses to employers.

Overall, these changes to the WCB are a significant win for injured workers. Yet there is a sense of half-measures to some of them. And aggrieved injured workers remain out in the cold.

-- Bob Barnetson