Deserting the Sick and Elderly, Some Unions Join Employers Seeking to Limit Lawsuits

"Health care for all!" is the Service Employees International Union's new battle cry, and the push for universal health care seems indeed to have become one of this massive union's top priorities.

SEIU has organized health care rallies from California to New Hampshire, attacking the inequity and corruption at the core of the U.S. health care system and raising hopes that organized labor may finally abandon the spectator's role it's long held in the health care debates.

That's the good news. The bad news is that while SEIU has advocated for health care nationally, in California the union has entered into what one observer has called an "unholy alliance" with for-profit nursing homes at the expense of nursing home patients.

In exchange for access to organize nursing home workers, SEIU has partnered with the nursing home industry to lobby for legislation (known as "tort reform") that would limit lawsuits over allegations of mistreatment of patients. Such mistreatment can range from incidences of sexual abuse and assault to what is sometimes called "fatal neglect"-death of patients due to inadequate care.

Though SEIU spokesperson Lisa Hubbard acknowledged, in a June 30 San Francisco Weekly article, that "SEIU has helped the industry support tort reform," Hubbard now says that tort reform is "off the table," and that no legislative action on tort reform is anticipated in 2004.

FUROR OVER ALLIANCE

Advocacy groups including the AARP, the Alzheimer's Association, and California Advocates for Nursing Home Reform (CANHR) are furious about SEIU's work on tort reform, as well as the "rate reform" bill SEIU is pushing through with the nursing home industry.

According to CANHR Executive Director Pat McGinnis, the rate reform bill "would spend millions of new state and federal dollars to guarantee nursing home profits, without any assurances that any of this new money will be spent on better staffing, better wages, or better patient care."

As with tort reform, SEIU claims that rate reform will lead to increased pay and better staffing ratios for nursing home workers.

McGinnis argues that there's no evidence to support these claims. "There's nothing in there about raises and better staffing," she asserts. "They've spent a hell of a lot of money on their PR campaign, but we haven't seen any language on wages or better staffing."

SEIU spokesperson Lisa Hubbard counters that the rate reform bill "provides incentives" to nursing homes that will compel them to increase pay and staffing levels.

Hubbard also acknowledges that, as SEIU has worked with nursing homes on lobbying, "nursing homes have agreed to allow more nursing home caregivers the freedom to choose to form a union."

McGinnis believes that SEIU is being naïve in trusting the nursing home industry to honor neutrality agreements, observing that the industry has spent "millions of dollars on union busting."

She adds, "We've worked with SEIU for 20 years. We've been on the picket lines and sat in with the workers when they demanded higher wages and better conditions." She says she'll always support the workers, but will "never trust [SEIU] at the state level, or their lobbyists."

Meanwhile, SEIU is reportedly backing nursing home tort reform bills in states outside of California-most notably Florida, with its sizable retired population.

"It breaks my heart," says McGinnis, adding that tort reform may be back on the table in California in 2005.

ASBESTOS COMP CAPS

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SEIU is not the only union supporting legal reforms with potentially disastrous public health consequences. The Auto Workers, Carpenters, and Operating Engineers are vocal supporters of a Senate bill to eliminate the right of asbestos victims to sue companies for personal damages.

The unions point out that the bill (titled the Fairness in Asbestos Injury Resolution Act of 2004) would create a multi-billion dollar compensation fund for asbestos victims, which victims could access without going to trial.

In a letter to Senator Bill Frist-co-signed by the Big Three automakers and Dow Chemical, among others-the unions urge swift passage of the bill, claiming that the "asbestos litigation crisis" is costing thousands of workers their jobs.

Yet, according to a 2004 report by the Environmental Working Group Action Fund (EWG Action Fund), the same companies that argue they're being bankrupted by litigation publicly assure shareholders that "no jobs, pensions or profits have been affected by asbestos lawsuits."

Federal Mogul, an automotive parts supplier that used its asbestos-related bankruptcy to extract concessions from its workers (see Labor Notes, August 2004), stresses that its Chapter 11 bankruptcy filing does not mean that the company is going out of business.

Instead, the company's website reports, bankruptcy proceedings will allow the company to "preserve and strengthen [its] business."

In fact, the EWG Action Fund notes, since the Bankruptcy Reform Act of 1994 provided special protection for companies with asbestos liability, "bankruptcy emerged as the preferred option for companies seeking to limit asbestos liabilities."

EVADING REPONSIBILITY

Jonathan Bennett, public affairs director for the New York Committee for Occupational Safety and Health, notes that one problem with this legislation is that it allows companies to avoid paying punitive damages. "Companies that mine and manufacture asbestos did not become concerned about litigation," Bennett explains, "until courts began forcing them to pay punitive damages."

Bennett says that the proposed victims compensation fund "acts as if nobody needs to be punished for anything, like it's just an accident." In fact, Bennett points out, "these companies know exactly what they're doing [when they expose workers to asbestos]."

Bennett notes that, under the most recent version of the bill, many workers with significant workplace exposure to asbestos will not be eligible for compensation.

According to Bennett, workers are eligible for compensation if they're "exposed to a certain level of asbestos for a certain amount of time.

"Workers with high exposure for a short time would not be eligible," Bennett explains, "even though...there are lots of cases who were just exposed for one summer job, for three months, who've come down with mesothelioma [a form of cancer associated with exposure to asbestos]."

Bennett also observes that the compensation fund would award settlements at fixed rate levels, regardless of a worker's age or number of dependents. So, according to Bennett, a 90-year-old single worker would receive the same award as a 48-year-old worker with four children.

Moreover, statistics show that asbestos-related deaths and illnesses remain at epidemic levels (roughly 10,000 Americans die annually due to asbestos-related illnesses), and asbestos remains widely used-more than 29 million pounds of asbestos were imported to the United States for use in 2001.

While some legislators have pushed for a ban on future asbestos use to be included in the bill, observers question whether any capped compensation fund can account for potential liabilities.

To view the Environmental Working Group Action Fund's full report on asbestos and industry, go to www.ewg.org/reports/asbestos.