Business lambastes employer liability bill

Lobbyists for the business community worry that a bill to redefine an employer's liability in the event of an employee's death may make it too easy to find employers at fault.

Representatives from the gaming, manufacturing, construction, insurance and retail industries voiced their concerns about Senate Bill 8 during a meeting of the Senate Committee on Commerce and Labor.

The lobbyists are worried that what they say is an ambiguous phrase in the bill could open the door to criminal charges against an employer even when the employee or others were to blame.

"...where the violation causes or creates a condition that causes the death of any employee...." is the portion of the bill that troubles many in the business community.

"If we send someone on the fourth story and he has protection but doesn't use it and he falls to his death, who created that condition?"

asked Leonard Nevin, a former state senator and now a lobbyist for the Nevada Subcontractor Association in Las Vegas, during the senate meeting.

"As vague as that is worded it would open us to litigation in every death," testified Ray Bacon, executive director, Nevada Manufacturing Association in Carson City.

Kevin Powers, an attorney with the Legislative Counsel Bureau, the government office that drafts the bills, said the meaning could be clarified by replacing that phrase with the words "proximate cause," which carries with it a legal standard.

"The employer would be liable only if the action is the direct cause and a natural and foreseeable consequence," said Powers.

A lobbyist for the gaming industry, Robert Ostrovsky, who represents the Nevada Resort Association in Las Vegas, didn't like that solution.

"I disagree with 'proximate cause,'" said Ostrovsky, in an interview after the meeting.

He said he'd like to see the bill specify employers that don't carry insurance, and leave law-abiding, insured employers alone.

"You have to balance the needs of good employers against what a few bad employers do," said Ostrovsky.

The bill was drafted in reaction to the 2001 explosion at Depressurized Technologies International, a Minden aerosol can recycling company, that killed one worker and seriously injured four others.

DTI was not insured.

The Industrial Explosions Committee of the legislature heard testimony in the interim regarding the DTI case and others.

"The testimony was more than compelling," said Sen.

Randolph Townsend (R-Washoe County, Carson City), chair of the Committee on Commerce and Labor.

According to Townsend, SB 8 would only target irresponsible employers.

"It has to be a willful act and a death before this is triggered," he said.

The bill also includes an increase in the amount companies are fined for violations, which was supported by the majority of lobbyists that testified.

The bill increases the fine for a first offense from $20,000 to $50,000 and an increase on the maximum fine for subsequent offenses from $40,000 to $100,000.

Townsend said the bill would be processed at the committee's next meeting.

It was scheduled to be heard again last Friday.

The senate committee discussed three other bills.

SB 9, which would revise industrial insurance, came under fire too.

"We don't endorse any change.

The system has worked very well," said Ostrovsky.

"Non-complying employers are already subject to civil action and can't hide under exclusive remedy clause."

The current workmen's compensation system is a no-fault system, in which a worker receives compensation for injury and, in turn, cannot sue his employer.

The proposed bill would add exceptions to the so-called exclusive remedy clause for injuries or death stemming for willful misconduct of an employer.

The bill was sent to a subcommittee comprising Sen.

Townsend, Sen.

Joseph Neal (D-Clark County), and Sen.

Margaret Carlton (D-Clark County), to reassess its language, and was scheduled to be heard again by the full committee at last Friday's meeting.

After the lobbyists cleared the room, the committee discussed and passed SB11, which would correct a minor mistake in the statue that is preventing Nevada's insurance division from receiving accreditation.

Finally, the committee debated a bill requested by Sen.

Neal to change the discrimination law to cover employers with five or more employees.

It currently covers employers with 15 or more employers, as mandated by federal law.

Sen.

Ann O'Connell (R-Clark County), and others, were worried the bill might severely impact small businesses if, for example, it required them to cover a worker's maternity leave.

Sen.

Townsend then requested more research be conducted to determine its cost to the smallest employers.

That bill, SB2, was also on the agenda for last Friday's meeting, as were three new bills.

SB 23, also requested by Sen.

Neal, provides for independent review of certain HMO and managed care case decisions; SB 24 allows for some access to the healthcare records of deceased patients; and SB 27 regulates athletic trainers.