I have had a couple of inquiries in the last few days about lawsuits filed by employees against meatpacking plants.

Michael C. Duff

One illustrative case is Benjamin v. JBS. Another is Blanca Esther Parra v. Quality Sausage Co. The fact patterns are essentially the same: The employer breached its duty to provide a safe work environment because it did not provide proper personal protective equipment, enforce social distancing measures or comply with the Centers for Disease Control and Prevention’s guidelines to prevent the spread of the coronavirus.

Infections were reported early in April (or so) and the employer knew that employees were sick. In one variation it is alleged that the employer intentionally misrepresented the safety of a facility.

In the workers’ compensation community we can sometimes be surprised at how little the general public (and apparently some practicing lawyers) know about even the basic operation of workers’ compensation. Inquirers sometimes seem surprised to learn that the only question I have is whether the individual hurt or killed “by” work is a statutory employee. If so, I obviously tell them that the harmed individual’s exclusive remedy against the employer is workers’ compensation.

It is true that in some states intentional torts are not covered by workers’ compensation. You can imagine my surprise when reviewing court pleadings in these cases to encounter page after page of negligence allegations rather than the allegations I would expect: “[T]he employer had the purpose of injuring or killing the employee, or knew to a substantial certainty that injury or death would result from its conduct.”

Texas, of course, is a special case because it is the only state in the country in which employers are presumptively not covered by workers’ compensation and must opt into the system to be covered. A Texas employer choosing to “go bare” may be liable in negligence. Even so, I would certainly expect a plaintiff (possessing knowledge of the existence of workers’ compensation) to shield himself against quick dismissal by informing the court at the outset that the employer has not opted into the Texas workers’ compensation system.

In short, the suits I have been looking at bespeak mounting desperation. Unless I am missing something, they will be promptly dismissed. The situation has the feel of clients insisting, out of a sense of outrage, that something, anything, be filed.

As an injury practitioner, it was often extremely difficult for me to resist the temptation to file these suits. I understand. And perhaps it will open a broader dialogue about the structure and adequacy of our state-law injury system.

Michael C. Duff is associate dean for student programs and external relations, and is professor of law, at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.