Friday, September 7, 2018

Thea Ekins-Coward was not an employee, UH argues

From the annals of employee safety and universities comes this gem via Honolulu Civil Beat (as a reminder, Dr. Thea Ekins-Coward was a postdoctoral fellow at UH-Manoa, when a cylinder ruptured due to a hydrogen explosion caused by a sparking pressure gauge. She lost her arm.):
The fate of a lawsuit filed by a researcher severely injured in a lab accident may come down to what her employment status was at the University of Hawaii Manoa. 
Thea Ekins-Coward was a postdoctoral fellow when the explosion occurred in 2016; she filed a lawsuit against UH claiming negligence in 2017. 
The question about her employment status may elevate the case to the Hawaii Supreme Court after attorneys for Ekins-Coward filed a petition to the state’s high court last month, contending she was never a UH employee. 
UH lawyers, who declined to comment for this report, argue in court documents that Ekins-Coward cannot pursue restitution in court. They say her only recourse is workers’ compensation. 
Although postdoctoral fellows are not considered employees while they are conducting research, a UH internal policy says they may be “treated as employees only for workers’ compensation benefits,” according to Ekins-Coward’s attorneys. They say this was not made known to her until after the explosion. 
“At least at the beginning, they made it a point to say that she was not an employee,” Claire Choo, one of Ekins-Coward’s attorneys, told Civil Beat. “She only found out after she was in the hospital.” 
In March, Circuit Court Judge Bert Ayabe, agreed with the university’s argument that the court did not have jurisdiction in the case. Ayabe ruled that the decision must be left up to State Department of Labor and Industrial Relations Director Leonard Hoshijo. Hoshijo could not be reached for comment.
Universities still manage to exist in this weird gray area of the law, where it seems like no one is really an employee...

9 comments:

  1. It still amazes me that someone can get all the way to a PhD without understanding that a pressurized hydrogen-oxygen mixture is a damn bomb (or all the way to a professor job in her advisor's case). Parroting facts can get some people surprisingly far.

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    1. And all the way into national grants agencies too. Green energy!! People just eat it up without really thinking about what it requires.

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    2. "Green," "sustainable," etc are like the fable about the Emperor's new clothes, where people are privately skeptical but keep their mouths shut because no one wants to be the bad guy who's against environmentalism, health, safety, etc.

      I wonder if Prof. Yu had enough of a language barrier that people only asked him softball questions during his interview process. I've known plenty of scientists with language barriers who knew their stuff, but I also think it could allow a weak candidate to slip through if he/she has some good publications that their advisor really wrote. If Yu didn't understand why the tank filled with a mix of H2 and O2 was a problem, he's in way over his head in this job.

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  2. ...unless it benefits the university for them to be so. Making up your own rules is fun and lucrative.

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    1. How do they get to determine someone's employment status? How do they get to pick and choose which parts of someone's job are covered by employment laws? That seems like a rather easily abused privilege for the university.

      I think she knew that it was a bomb - but I don't think she was the first in the lab to work with it. Just like people that work with HF or t-BuLi, you know that there's hazard there, and try to minimize your exposure to it. The problem was that the apparatus didn't work as intended (because it was not designed to do what it was being used for) and her advisor ignored that. Again, another problem with the employee/not employee status of PDFs - if you actually had a chain of command, you could go up it if you had a serious concern, but PDFs (or grad students mostly) don't have that option.

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    2. Same with sexual harassment. If the stockroom manager harasses one of his techs, that's sexual harassment because she's a university employee. If a professor does it to a female grad student, it gets swept under the rug because she only has her employee hat on when it's convenient for the university.

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  3. Having been in an "is he/she an employee or not" legal battle with a previous employer, I can say that this previous employer argued that by him giving us a 1099, we are contractors whereas a W2 meant you were in fact an employee. The state initially agreed, but after further arguements, the state clarified that since we did not supply our own tools or equipment or raw materials or anything (those were all provided by the employer), we were in fact full employees and the employer was skirting legalities and fined him hard for such.

    By this above experience, I am of the opinion that universities are also employers of the student/postdoc employee. The problem is that universities are huge and hugely political and therefore makes it a tricky task for the state to determine them as such vs one single small business owner. But I feel if they are providing W2's and supplies to the "student trainees", how is it are they not determined an employer? If the students and postdocs are not considered employees, should they be receiving a 1099 instead and not offered other typical employee benefits?

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  4. "In January, UH launched Hooponopono, software that helps to assess and identify hazardous materials related to research"

    UH still didn't learn. Everyone knows full well that hydrogen-oxygen mixtures are explosive at nearly any concentration, but that piece of knowledge doesn't teach you how to handle the mixture safely. These Right-to-Know laws are risible on a sunny day, you have a right to know about hazards but no right to safe working conditions! On some days you think that only lex talionis will increase workplace safety.

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  5. Some years ago I experted a potential 7-figure case that tipped because I discovered that the injured party was an employee of the company as opposed to a contractor. That was a serendipitous discovery, because the attorney whom I was working for left in the injured party's W-2 in the review file. The case quickly settled for much, much less than the employee was asking for.

    As Anon 10:54 points out: A W-2 settles the question; a 1099 will take a little longer.

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