The Austin Chronicle

Justice and Worker Safety

By Lee Nichols, December 21, 2007, News

Labor leaders and legislators used International Human Rights Day (Dec. 10) to draw attention to a Texas Supreme Court decision from this summer, which they say threatens worker safety and the ability of work­ers to sue when injured by negligent employers. In the case of Entergy v. Summers, the all-Republican court ruled the owner of a business can also be considered the general contractor for work done on the business property, and if that business owner has purchased a certain type of workers' compensation insurance, then temporary employees brought on-site are prevented from suing for injuries by Texas' workers' comp laws. Texas labor law says workers' comp benefits are the "exclusive remedy" for work-related injuries incurred by covered employees. Labor officials and lawmakers said the relevant portion of the Labor Code, Section 406.123, was not intended to define premises owners as general contractors.

The plaintiff, John Summers, argued that when he was injured while performing construction and maintenance work at Sabine Station plant of Entergy Gulf States Inc., his direct employer was International Main­ten­ance Corp., the company hired to perform the job. Entergy argued that since it was the company that hired IMC, it was the general contractor employing Summers and that he was covered by their policy, and thus they could not be sued. In the Aug. 31 opinion, Justice Don Willett wrote that the court had looked at the plain language of the law and "the governing Labor Code definitions of general contractor and subcontractor do not forbid a premises owner from also being a general contractor."

On Dec. 10, Becky Moeller, president of the Texas AFL-CIO, called the portion of the law on which the court relied, "an obscure, 15-year-old nonsubstantive recodification of the Labor Code," and said, "The Texas Supreme Court has gouged a giant hole in the legal protections for Texas workers by giving large-business owners a technical loophole to escape the consequences of their own wrongdoing."

Until the Texas Supreme Court waltzed into this issue, the Texas Legislature, even at the height of the tort-reform craze, had declined to go this far in closing the courthouse doors to injured workers, despite repeated efforts by the anti-lawsuit lobby. Sen. Kirk Watson of Austin echoed that, saying, "The Court reached a result that the Legislature has rejected over and over again. The Legislature has avoided reducing and has, instead, worked to assure worker protections and also make sure employers keep a commitment to safety."

"Non-substantive re-codifications of statutes are a constitutionally mandated duty of the Legislature ... specifically meant to NOT change the intent of law," said Brownsville Sen. Eddie Lucio in a statement. "In the Entergy decision, the Texas Supreme Court has violated the separation of powers in this state using judicial activism to write law."

Moeller said the AFL-CIO will call for a rehearing and reversal of the decision and will participate in any legislative hearings called to discuss the case.

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