In this post, I want to raise a general question about the place of workers’ compensation in the law school curriculum. At many law schools, the “core” labor and employment courses include: Employment Law, Employment Discrimination Law, Labor Law, and Employee Benefits. A course in Workers’ Compensation may or may not be included as a fifth course in that core curriculum, and it may not be offered as regularly as some of the other courses in the labor and employment field. A survey course in Employment Law may touch upon the subjects of workers’ compensation and OSHA, but many such courses omit them and probably none cover them in great detail. So where does workers’ compensation fit, and how might the course best be structured to serve our students?
The practice of workers’ compensation law is highly specialized and often characterized by state-specific details (and the resulting state-specific acronyms and jargon). As just one example, in Florida and some other states the concept of a “major contributing cause” (MCC) provides a critical limitation on recovery. Likewise, familiarity with state-specific developments such as Florida’s recent invalidation of a strict attorneys’ fee cap is important for those considering entering practice in the field. So, perhaps students are best served by specialty Workers’ Compensation courses that focus on the general structure of state workers’ compensation statutes, their historical development and limitations, and significant time studying the unique state-specific provisions in the jurisdiction where most of the school’s graduates will practice.
On the other hand, an overly-narrow focus on the details of a single state statute may risk losing the forest for the trees. A complete understanding of the role of workers’ compensation in our society really requires at least some critical consideration of theories of market behavior (compensating wage differentials for risky work), the tort system alternative/precursor to workers’ compensation systems, and other governmental regulation of worker safety (OSHA). Students ought to consider whether we need workers’ compensation laws at all; if so, why; and how should they be structured? To that end, I have experimented with a small-enrollment seminar course titled “Worker Safety Law and Policy.” The first few weeks of the course are devoted to understanding market theory, compensating wage differentials, and the identification of potential market failures that might justify legal intervention. Then we move to a consideration of the tort system precursor (and its FELA iteration) and the historical limitations of tort, including the unholy trinity defenses. Next we examine the history and structure of workers’ compensation laws, with a special focus on some key provisions and developments in Florida law. We also consider alternative approaches, like the different opt-out systems in Texas and, until recently, Oklahoma. Finally, we turn to OSHA to consider whether there is a residual need for command-and-control type regulation of workplace safety and, if so, how it might best be structured to counteract market failures. Understanding workers’ compensation from this broader, more theoretical perspective may help students gain a better appreciation of what the Grand Bargain represents and what is at stake in challenges to current state laws. In my experience, I have found that this course structure works quite well, although it necessarily leads us to spend less time on some specific aspects of the Florida statute than would a typical course on Workers’ Compensation.
Given that many of the contributors and readers of this blog practice in the field, I’m curious about what others think is the best way to approach the subject of workers’ compensation in law school. Where does workers’ compensation—or, more broadly, worker safety—fit?
Jason R. Bent