Construction workers in West Campus apartment complexes allege mistreatment, unpaid wages

Of the three West Campus apartment complexes that opened to more than 1,000 students this fall, at least two were built by construction workers who claimed they were mistreated.

Documents obtained from the City of Austin show complaints have been filed against the contractors who oversaw construction of 2400 Nueces and The Callaway House for lack of rest and water breaks for construction workers. Workers Defense Project, a nonprofit that strives to represent mistreated workers in Texas, has also taken legal action against owners of The Callaway House twice this year after learning of unpaid wages for construction workers who worked on the private off-campus dorm.

The City of Austin received a complaint, regarding breaks, against the construction project at the 2400 Nueces site. Construction workers who built the property have claimed they were not given rest or water breaks during day-long shifts of work. While Texas does not require breaks at the state level, a City of Austin ordinance requires a 10-minute rest break for every four hours on the job. A construction worker, who worked on 2400 Nueces and spoke to The Daily Texan on the condition of anonymity, said he was mistreated in several ways while working on the project.

Despite the conditions and not receiving overtime pay, the worker said he could not quit because he had to provide for his family and the work at 2400 Nueces was the only job he could get at the time.

Hensel Phelps, the general contractor for the project, did not return a request for comment, but city records show an inspector visited the site in response to the complaint filed in July 2012 and took pictures of rest stations, water coolers and the required city-issued signage about the policy. The land 2400 Nueces was built on is leased by UT to a private college student housing developer.

Around the same time the rest breaks complaint was filed, a construction worker at 2400 Nueces fell from the sixth floor injuring himself and the two other workers he fell on. They were all treated at a hospital for non-life-threatening injuries.

The worker interviewed by The Daily Texan — who was not one of the workers who fell — said he and other construction workers were not given any kind of health insurance or compensation while working on the site.

Greg Casar, a business liaison representative for Workers Defense Project, compared Texas’ construction industry to doping in sports.

“When it is so competitive, and there is really no enforcement or oversight, then it creates an incentive for everybody to cheat,” Casar said.

Texas is one of the nation’s most robust states for construction, with more than 950,000 construction workers in the state, according to the 2010 U.S. Census. Accompanying this massive amount of construction work is limited state government oversight and regulation. Unlike California and other states with large construction industries, Texas does not require breaks for workers or compensation for on-the-job injuries. The state also has no task force in place to monitor workplace fraud.

The allegations made by workers in West Campus are consistent with statewide worker mistreatment issues discussed in a report by UT.

Earlier this year, UT faculty — in partnership with Workers Defense Project and faculty from the University of Illinois at Chicago — released Build a Better Texas, a report that examined the construction industry in Texas. The report found 39 percent of workers surveyed said they did not receive rest breaks. Another issue many construction workers face is misclassification as contractors, because of which workers are often not paid for overtime, forced to supply their own safety equipment and are not given insurance.

Workers Defense Project alleges this occurs at most private construction projects like 2400 Nueces.

“The idea is you are completely on your own,” Casar said. “It totally severs any level of responsibility anybody has to that worker.”

Worker misclassification, or workplace fraud, is illegal nationwide but the way individual states handle and investigate these instances varies greatly. About 41 percent of workers surveyed said they were victims of workplace fraud, according to Build a Better Texas.

Further complicating the situation is the distant relationship between general contractors and construction workers, who are often hired and supervised by subcontractors.

“It’s not the general contractors that are cheating,” Casar said. “They have a direct working relationship at the developer level, and aren’t overseeing the labor at any phase. If you just build a building, and don’t ask questions, that’s what you get.”

In July, Workers Defense Project filed a lien — a legal maneuver that prevents the owners from selling the property and could lead to further legal action — against American Campus Communities, the owner of The Callaway House, after construction workers who worked on the project claimed $36,800 in unpaid wages. Earlier this week, The Callaway House’s general contractor, Harvey-Cleary, promised to pay the unpaid wages following the lien.

This is the second time Workers Defense Project has successfully advocated for unpaid workers against the owners of The Callaway House. In April, workers won a claim of more than $24,000 in unpaid wages.

Gina Cowart, vice president of investor relations and corporate marketing at American Campus Communities, said the company had instructed Harvey-Cleary to pay the workers for the full amount of unpaid wages. American Campus Communities is “rigorous” in paying its contractors and service providers, Cowart said.

“We do not believe we have been accurately portrayed by Workers Defense Project communications,” Cowart said in a statement. “However, we do respect the role they played in bringing the matter to our attention to foster resolution.”

Almost a quarter of construction workers surveyed by Build a Better Texas reported they had previously been denied wages.

The documents obtained from the city also revealed a complaint filed in May against The Callaway House construction project for violating the ordinance that requires rest breaks on construction sites.

City records show an inspector visited the site after the complaint and found the required city-issued signage about the policy was posted at the site. The inspector also reminded the management of the ordinance.

Harvey-Cleary did not return a request for comment.

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Source: Daily Texan (Blanchard, 9/06)

Man who bought alcohol for a minor gets 90 days in jail

(BONHAM, TEXAS) -- A Texoma mother who lost her son in a drunk driving accident wants the adults who buy alcohol for minors to face harsher punishments after she says the man who bought alcohol for her son that day got off way too easy.

Thomas Calame Robinson and his friend Jesse Runyon were killed in December of last year when Robinson took the wheel after a night of drinking. The alcohol was purchased by 24-year-old Jeremy Horton who was sentenced Wednesday to 90 days in jail.

Tamberly Robinson says her son was the love of her life.

All she has left of her 18-year-old son Thomas are pictures and memories.

Tamberly Robinson said that her son was "full of joy and happiness, he lived every day as if it were his last, he was a good kid, but like most kids he made a mistake and he paid dearly for his mistake and so did his friend."

On December 7th last year Thomas took the wheel with passenger 17-year-old Jesse Runyon after drinking alcohol that 24-year-old Jeramie Horton bought for the group of minors - two 30-packs of beer and a handle of vodka. Police say Thomas was driving at a high speed and lost control of the car, killing both of the boys. Tamberly said a text message confirmed Horton had supplied the boys with alcohol.

Tamberly Robinson " I saw it on his phone when I got it back from DPS that said here I go playing the hero again and now the hero got 90 days in jail and 2 boys are dead my son and his friend."

Robinson says the punishment doesn't fit the crime.

Tamberly Robinson said, "The laws aren't tough enough for the people that are buying alcohol for our children because our children are dying."

But Fannin County District Attorney Richard Glaser told Alexandra Carter this is the first time he's put someone in jail for providing alcohol to a minor.

Richard Glaser, " We insisted upon it in this case because of the serious consequences. We wanted to send a message to the young people in Fannin County that they need to stop and think before they either purchase it from friend or buy it from a friend because terrible things can happen."

Tamberly says she's writing lawmakers and starting a movement for harsher penalties for those who provide alcohol to minors.

Robinson, " and that's just a pain I wouldn't want anyone else to go through, but if and when it happens I would like them to have a greater sense of justice than what we got.

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Source: KXII (Carter, 8/23)

Swimming Pool Accidents

It’s that time of year when the 6 o’clock news leads far too often with the most tragic stories about childhood drowning deaths, near deaths, and injuries. Just this week, there was the news about the son of singer Usher nearly drowning in the family’s pool. The statistics are sobering.

According to the Centers for Disease Control: Every day, about ten people die from unintentional drowning. Of these, two are children aged 14 or younger. Drowning ranks fifth among the leading causes of unintentional injury death in the United States.

To help parents better understand the complexities of these cases, the Texas swimming pool accident lawyers offer these answers to five common swimming pool liability questions.

1. Who is liable for injuries in a swimming pool?

It depends on who gets injured, how they were hurt, and who owns the pool. In Usher’s case, had his son died or sustained permanent brain damage due to lack of oxygen, the pool manufacturer (and the drain manufacturer) might be liable if they knowingly built a drain without enough safeguards to protect children from getting stuck in it. Because these types of products liability cases are so difficult and are unique to each case, it really depends on what happens and why. If, on the other hand, a kid is running around the pool area irresponsibly, slips and falls and gets injured, then absent some argument that the pool surface area lacked proper friction, then the kid is likely out of luck. Additionally, if you drown in your own pool because you fall in as a result of a fainting spell, you’re also out of luck, since there is no causal link between the pool construction and your fainting.

2. What should a homeowner do to limit their liability for injuries in their pool?

The single biggest thing you can do is to provide reasonable care to secure the pool. In this case, reasonable care means complying with local laws and ordinances regarding security. This way, if a child sneaks into your backyard and into your screened back pool enclosure, then drowns in the pool, your liability will be limited or nonexistent if you can establish that you complied with all laws, got your pool inspected, etc. On the other hand, if you know that a child sneaks in, and more importantly know how they do it, you could be liable if you fail to take what the law says are reasonable steps to stop the child. For example, say you learn that a child learns the code to your backyard electronic access gate, you need to change the password. Alternatively, if the kid climbs or crawls through a hole in your screen to access your pool, then you need to get the hole fixed, otherwise you may be liable even if you follow other standard procedures, because the law will say you knew, or should have known, that the child could access your pool a number of different ways.

3. What if the injury was caused by the negligence of the swimmer?

Most likely you are off the hook. However, if you know the person swimming doesn’t know how to swim, and you leave them alone, you may be liable for their injuries because you had advance knowledge that they lacked meaningful swimming ability. On the other hand, a homeowners association can be liable for injuries to a swimmer if the swimmer was part of an organized activity occurring on association property. Here’s an example: One day I saw a van full of kids on summer camp pull into our community, head to the pool, and proceed to swim for a few hours. I was outraged because a homeowner gave the camp permission to swim in our pool as part of an organized activity. Our association wasn’t insured for injuries that occurred as a result of an organized activity, and I immediately had the association inform the homeowner not to allow this activity anymore because we weren’t insured for it. As a result, if a kid got injured during this organized activity, the association would have had to pay the injured family directly, resulting in a special assessment against every homeowner.

4. Are the laws different for public swimming pools?

Absolutely. Community pools are held to a different standard because they are designed for public use, and as such, they need to have different safety precautions in place to accommodate a large number of swimmers, as opposed to your backyard swimming pool that is used by just a few people.

5. What about if there’s a lifeguard or a “swim at your own risk” sign?

Merely posting a sign saying you are swimming at your own risk wouldn’t eliminate the risk to the pool/drain designer in Usher’s case, because the liability arises from the design of the drain, not from the swimming. But, in some cases, this kind of disclosure (a “swim at your own risk” sign) may relieve the pool owner of some liability.

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source: abc15.com (Fischer, 08/13)

State to Feds: We Won't Enforce Insurance Reforms

Though Texas will join 26 other states in defaulting to a federal marketplace for purchasing health insurance — a major component of the Affordable Care Act — it is one of only six that will not enforce new health insurance reforms prescribed by the law. It's a decision some say could lead to confusion over who's responsible for protecting Texas insurance consumers.

Because Texas did not create its own state-based marketplace, known as a health insurance exchange, under the Affordable Care Act, it must use a federally facilitated one instead. By federal law, the state must enforce provisions and regulations related to the insurance exchange and market reforms unless it notifies the federal government that it cannot or will not. If a state does not enforce those reforms, the federal Centers for Medicare and Medicaid Services will step in to do it.

Texas, Arizona, Alabama, Missouri, Oklahoma and Wyoming have all notified the federal government that they will not be policing the health law. John Greeley, a spokesman for the Texas Department of Insurance, said his agency cannot enforce regulations tied to the federal insurance exchange or market reforms because it is not authorized to do so.

"We can't act on anything that doesn't exist in state law," he said.

Officials with CMS, who sent a letter to TDI acknowledging the state's decision, declined to comment for this story.

Stacey Pogue, a health policy analyst with the liberal Center for Public Policy Priorities, said she doesn't believe TDI's hands are tied. In the past, she said, the agency has responded to federal laws by "taking actions that ensure that they do have oversight."

The practical effects of the state's decision are not entirely clear yet. In the first show of autonomy, Texas was not required to comply with a federal request for information about its insurance plans. Most states defaulting to the federal health insurance exchange had to submit that information by July 31.

In the states that will not enforce the exchange and market reforms, the federal government will have to review insurance forms and respond to consumer complaints about health insurance, said Kevin Lucia, an assistant research professor with the Georgetown University Health Policy Institute’s Center on Health Insurance Reforms. Those duties, he added, are “typically reserved for state insurance departments.”

Pogue said the state's decision could create an “administrative burden” for insurance plans and could result in confusion for Texans who purchase health insurance under the federal exchange. For instance, she said, if people worry their insurance providers are discriminating against them based on their gender — a practice banned by the federal reforms — they may not know whether to report a complaint to CMS or to TDI.

“There’s all this opportunity to be bounced back and forth, which is a burden for consumers,” she said. If consumers have to report insurance violations to the federal government, that could prevent TDI from having a complete picture of consumers’ experience with insurance providers, she added.

“Consumers can be experiencing a lot of problems on the market that the state regulator doesn’t know about,” Pogue said.

Greeley said TDI has worked to make sure “insurers understand what their responsibilities are” under the ACA. And he said even if the state does not enforce federal regulations, TDI will still work to protect insurance consumers.

“Anybody that buys an insurance policy in Texas — no matter what line or how they got to it — can come to the Texas Department of Insurance for their questions,” he said.

David Gonzales, executive director of the Texas Association of Health Plans, said it’s unclear what impact the state's decision could have on insurance companies.

“I suspect it will be more of a burden for some plans than for others,” he said.

Pogue said inefficiencies could stem from the state’s refusal to enforce insurance reforms. TDI is the agency best equipped to regulate insurance plans in Texas, she said.

“Without a doubt they are the appropriate body,” she said.

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Source: Texas Tribune (Luthra, 8/07)

Warrant issued for bar patron in fatal DWI

Montgomery County officials issued an arrest warrant for a man who allegedly gave drinks to an already intoxicated 24-year-old Nicole Baukus before she drove away from a bar and caused a fatal accident.

Baukus, who pleaded guilty Thursday to two counts of intoxication manslaughter and one count of intoxication assault in the July 29, 2012, accident, was sentenced Friday to 38 years in prison.

After a night of drinking at a bar then called On the Rox, Baukus drove her pickup the wrong way on Interstate 45, colliding head-on around 2:50 a.m. with a Chevrolet Aveo near FM 242. The crash killed Nicole Adams, 19, and Travis Saunders, 18, and injured David Porras, now 23.

As an outgrowth of the trial, a warrant was issued Friday for Kambiz Michael Duran, 29, who is in the Harris County Jail after pleading guilty last month to possession of marijuana. On July 10, he was sentenced to 180 days in a state jail.

Harris County online records show that a hold from Montgomery County was placed on the Spring resident Friday, meaning that before Duran is freed, Montgomery County will have the opportunity to detain him.

Duran, a fellow bar patron, was seen on surveillance video giving Baukus a few drinks toward the end of the night, but authorities didn't know his identity, said Assistant District Attorney Warren Diepraam, co-prosecutor for the case.

"We could see him giving her drinks in the video but nobody would identify him," Diepraam said. "It was only during the trial when witnesses started testifying (that we learned his name)."

The same statute that makes it illegal to sell drinks to an intoxicated person also prohibits giving alcohol to someone who has already consumed too much, Diepraam explained.

On the Rox was cited for over-serving a customer and had its license suspended from Feb. 27 to March 28, according to the TABC. Since then, the bar's insurance company has agreed to a $1 million settlement for over-serving a patron.

The money is to be divided among Porras and the estates of Adams and Saunders.

Oscar Williams, a Texas Alcoholic Beverage Commission agent based in Conroe, testified during the trial that Baukus drank 17 shots and four beers. Most of the shots were a mix of bourbon, Red Bull and either peach schnapps or watermelon schnapps, William said.

Baukus and Duran apparently ran into each other at the bar, rather than arriving together, Diepraam said. He said he didn't know if the two were acquainted previously.

The bar is now known as the Flying Pug Sports Pub, according to the alcoholic beverage commission.

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Source: Chron (Christian, 8/03)

Car Insurance Rates Are Higher Based On Education, Report Says

People may be paying higher auto insurance rates if they didn’t go to college or work blue-collar jobs, according to a new report from the Consumer Federation of America (CFA)

The CFA found major auto insurance companies like GEICO, Farmers, Liberty Mutual, and Progressive charge higher rates from drivers who only have a high school diploma or a lower-status job.

Liberty Mutual, for example, charges a high school graduate 10 to 13 percent more that a college graduate, according to the report.

Companies must be doing this for a reason, but the CFA doesn’t offer any. It is unclear how education and occupation affects the level of risk involved when driving a car. Do people with less education or lower-level jobs get into more accidents? If that’s the case, then why don’t other companies like Travelers, USAA, State Farm, and Allstate use education or work status to calculate their rates? There could be a trade-off, like taking into consideration claim history, credit score, and whether the company also insures your house, business, etc., instead.

A 2012 survey showed the majority of American consumers believes using occupation or education to set rates is unfair.

CFA says it is working to stop the discriminatory factors used in calculating auto insurance premiums. The group seems to assert that giving auto quotes based on occupation is akin to a quote based on race.

“The American public knows that it is unfair for auto insurers to use factors like education and occupation in setting rates,” said J. Robert Hunter, CFA’s Director of Insurance, a former Texas Insurance Commissioner and former Federal Insurance Administrator. “In effect, auto insurers are discriminating on the basis of income and race. States should prohibit the use of these demographic factors that bear no logical relation to insurer risk.”

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Source: Opposing Views (Fruchtnicht, 7/28)

Elder abuse claim adds new liability risk for doctors

A physician who allegedly failed to refer a patient to a specialist can be liable for elder abuse, a California appeals court has ruled. The decision by the Court of Appeal for the State of California, 2nd Appellate District, said doctors can be sued for elder abuse for their outpatient treatment of seniors, regardless of whether they had “custodial obligations” to the patient.

Legal experts say the ruling broadens liability for doctors who treat older patients and exposes them to additional legal penalties when negligence claims arise. Plaintiff attorneys in states with similar elder abuse laws probably will use the California ruling as fuel to expand physician liability in their jurisdictions, legal analysts said.

“This is going to open the door for medical malpractice plaintiffs over the age of 65 to start pleading elder abuse in addition to medical malpractice,” said attorney Cassidy C. Davenport, who represents Pioneer Medical Group, the defendant in the case. “This is going to allow them to circumvent tort reform statutes” since elder abuse is not included in such medical liability reforms.

In the California case, Elizabeth Cox, 83, began receiving care at Pioneer Medical Group in Cerritos in about 2000, according to court documents. Several health professionals treated her for onychomycosis, which limits mobility and indirectly impairs peripheral circulation.

In 2007, Cox’s vascular issues worsened, and a Pioneer family physician diagnosed her with peripheral vascular disease, according to court documents. The patient’s condition continued to deteriorate, and she visited Pioneer Medical Group at least seven more times during the next two years complaining of various aliments associated with peripheral vascular disease. She was admitted to a hospital with gangrene in 2009, and her right leg was amputated. She died from blood poisoning in 2010, court documents say.

In 2011, Cox’s daughters sued Pioneer Medical Group and several staff members for elder abuse. The plaintiffs said the medical group’s continued failure not to refer Cox to a vascular specialist constituted abuse and neglect.

The medical group contended it was not liable for elder abuse because doctors treated Cox as an outpatient, and liability for elder abuse “requires assumption of custodial obligations.” The group argued the alleged conduct constituted only professional negligence and not the “reckless neglect” required for an elder abuse claim. A lower court ruled in favor of Pioneer, throwing out the case.

Appeals judges reversed. They sent the case back to the lower court, allowing the elder abuse claim to move forward against Pioneer Medical Group. Whether the defendants’ conduct was reckless is for a jury to decide, the judges said.

“The jury may view defendants failure to refer Mrs. Cox to a vascular specialist as deliberate indifference to her increasingly urgent medical needs without regard for the excessive risk to which they exposed her by their failure to seek appropriate specialized care,” the May 24 opinion said.

Pioneer Medical Group in July asked the California Supreme Court to review the decision. At this article’s deadline, the court had not said whether it would accept the case.

Investigations stem from adult protective laws

The California Medical Assn. was disappointed with the decision, saying it blurs the lines between conduct that falls under the state’s Medical Injury Compensation Reform Act and the Elder Abuse Act. The CMA issued a friend-of-the-court brief in support of Pioneer Medical Group.

“The opinion really will hurt the goals of both MICRA and the Elder Abuse Act,” said Alicia Wagnon, CMA legal counsel. “The facts of this case are so clearly professional negligence. That [these actions] can also be deemed elder abuse is simply wrong, and it really eviscerates MICRA’s definition and the purposes of MICRA.”

All states have some form of adult protective services statutes that authorize and regulate investigation of elder abuse cases. Generally, APS laws establish a system for the reporting and review of elder abuse claims and for the provision of social services to help victims, according to the American Bar Assn.’s Commission on Law and Aging. Most jurisdictions also have separate elder abuse laws that provide for civil or criminal damages in cases of elder abuse and neglect, either by individuals or institutions.

The intent of such laws is to prevent custodians from abusing and taking advantage of elderly patients, Davenport said. She notes the majority of elder abuse claims arise in the nursing home context and involve repeated acts of ignoring an elderly patient’s basic needs such as adequate food and water.

“We have an aging population in nursing homes [who are at risk] for being abused physically and financially,” she said. Elder abuse laws are intended “as an incentive to go after those who are abusing these elders. It wasn’t to say elders get extra incentive to sue the physician for medical malpractice.”

The California ruling confirms that physicians should be held responsible for recklessly failing to provide necessary medical care, said Clay Robbins III, the plaintiffs’ attorney.

“Merely because a person withholding [medical care] also happens to be a physician should not have bearing as to whether that individual should be responsible for the enhanced remedies under the act,” he said.

Jury awards not covered by insurers

The ruling is concerning for physicians who treat elderly patients, said William E. Hopkins, a health law attorney and partner at Brown McCarroll in Texas.

“Physicians are now on notice that they’re not just being judged on a negligence standard; they’re now being judged on negligence and this other standard,” he said. “I would not be surprised if [elder abuse] is pled in most cases where there’s some level of medical negligence with elderly people.”

Hopkins said Texas has an elder abuse law similar to California’s, and that he can foresee a similar case playing out in his state.

“This is the kind of case that certainly will have plaintiffs lawyers’ minds working with regard to, “Is this something I should be pleading?’ ” he said. “They’re going to pull the elder abuse act in their state and see if this kind of argument applies.”

If the decision stands, physicians found liable of elder abuse would be forced to pay jury awards out of pocket, Davenport said. Insurance policies generally do not cover elder abuse claims. Fear of such payments probably would lead to more settlements, she said.

The decision jeopardizes doctors’ professional medical judgment and could negatively affect patient care, said Bret C. Perry, an Ohio medical liability defense attorney who defends physicians, assisted-living facilities and nursing homes.

“The practice of medicine and decisions made on a daily basis by physicians and health care professionals cannot be legislated, and those decisions clearly fall within the purview of professional judgment,” he said in an email. “If this ruling is permitted to stand, I can foresee a chilling effect and negative impact on the future of medical care for the elderly and potentially an exodus of professionals leaving the state due to this type of potential liability.”

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Source: Amed (Gallegos, 7/22)