Work-injury law is already more complicated in Texas than in any other state. That’s because Texas operates two parallel systems that help those who are injured on the job. The traditional workers’ compensation system pays benefits to workers or their families when a worker is injured or killed on the job, regardless of whether or not the accident was caused by the employer or the employee. Some employers like this system because it provides them with immunity from most lawsuits. Because compensation is guaranteed to injured employees under this system, they are barred from seeking remedy through litigation.In most instances, there is an avenue for injured workers to not have to bear the full cost of being injured on the job.
Unlike every other state, participation in this program is voluntary in Texas. That means there’s a second means for workers whose employers “opt out” of the system to obtain remedy for their injuries. Those who work for companies that opt-out of workers’ compensation, also known as non-subscribers, are not guaranteed benefits when they’re injured. Unlike those in the workers’ compensation system, though, they retain their right to file suit against their employer for any injuries that result from the employer’s negligence. Unlike workers in the workers’ comp system, employees of non-subscribers have the potential to recover all of the costs associated with their injury, whereas most workers’ comp benefits don’t make up for the entirety of an employee’s lost wages and other damages.
What all of this means to the average worker is that one way or another, they have access to either benefits mandated by law, or the courthouse. In most instances, there is an avenue for injured workers not to bear the full cost of being injured on the job.
However, this system (like any other) isn’t perfect, and workers in certain jobs face greater risks of being left out in the cold than the average worker. Perhaps few professions are more exposed under this system than contractors who work repairing cell phone towers. The combination of tight profit margins, a highly competitive landscape, and employers with very few assets means that these workers can have some very complex legal waters to navigate after an accident.
Dallas, TX: April 24, 2017
Information is still minimal with respect to this accident, but authorities say the incident occurred at approximately 2:45 p.m. on Monday. Dallas Fire-Rescue personnel state that a “boom truck”-style crane fell over while a crew was working near a T-Mobile cell phone tower at 1700 Arts Plaza in Downtown Dallas.
The toppling crane pinned 49-year-old Isidro Morales, one of three workers in the crew. He died of his injuries at the scene. An unnamed coworker sustained non-life-threatening injuries and was taken to a nearby hospital; the crane operator was treated at the scene and released. Authorities are not yet certain what type of work was being done at the time of the accident, or why the crane lost its balance.
I don’t know how anyone else feels, but it seems to me that in many respects that we’ve become too cavalier about work accidents. Having seen my fair share of work-injury fatalities, in the vast majority of them, there was something simple and inexpensive that an employer could have done to prevent their worker from suffering a fatal injury.
Without sounding like I’m pining for bygone days when people slept with their door unlocked, I can recall a time when our media (and the public at large) found it scandalous when a company wasn’t providing a safe work environment for there employees. Based upon the limited information available in the press, it would be premature to say whether or not that is the case in this accident, but at the same time I don’t sense an urgency on the part of the press to find out. That’s what I find outrageous.
Cell Phone Tower Repair: The Lay of the Land
Major cell phone carriers have communication towers all over the country. When they need maintenance performed on localized sites or equipment, they’re likely to hire contractors for that upkeep and repair. It’s more practical to hire a third party for a single job than it is to pay a full-time repair staff to be on call in every area with some of the company’s holdings.Some contracting firms are fly-by-night outfits, cutting costs wherever possible to lower their overhead.
Anyone with a cell phone knows that service providers occasionally face technical issues. When one of their numerous towers fails or needs repair, these companies must rapidly respond to the issue or their coverage could lapse. That might not sound like too dire an event, but society increasingly depends on the power of mobility; cellular users are guaranteed to raise hell if they lose service. When a problem occurs, a call goes out, and more often than not, a contractor is the one who receives that call.
Aside from the fixed costs of keeping all of their maintenance in-house, another reason that companies don’t keep technical-repair staff on the payroll is because they would then be liable for any injuries those workers might sustain in the field. While in the recent accident it was apparently the boom-truck itself that tipped over and caused injury, there’s plenty of on-site dangers for this type of work as well.
Tower sites are built with numerous safeguards, but they can still be responsible for serious injuries. Communication towers vary in height from 200 to 500 feet and have a huge amount of electricity going through them. Besides harmful/fatal falls and electrocution, workers can also sustain RF burns or be stung by the surprisingly-common colonies of bees that build hives on the towers. The benefit of hiring independent contractors is that any of these job-site injuries become “someone else’s problem.” The problem is, the contracting firm can feel the same way.
The Risks to Workers of Cell Phone Contractors
Cellphone tower repair contracting can be a cutthroat industry. In order to stay competitive, many companies are force to shed whatever fiscal ballast they believe they can lose–worker training, equipment, and even workers’ compensation coverage–allowing them to submit lower bids for contracts and still turn a profit. Because Texas companies can opt out of participation in workers’ comp, there are times when an injured workers’ sole recourse is to sue his employer. This creates something of a delicate legal landscape when trying to hold contractors accountable for on the job injuries, as personal injury attorneys have to balance getting justice for their clients versus the possibility of putting the employer out of business.Besides harmful/fatal falls and electrocution, workers can also sustain RF burns or be stung by the surprisingly-common colonies of bees that build hives on the towers.
All of this is to say that in a the best-case scenario for an injured tower rigger, he either works for a company that participates in the workers’ comp system, or he works for a company that is stable and has the assets to cover the costs of a serious work injury or fatality. For the latter category, the injured worker or his surviving family will still have to go through the trouble of proving that the employer was negligent in court, but at least there is a path to recovery.
Of course the ideal scenario is just that–ideal. For many workers it doesn’t actually exist. For smaller contracting firms, not only are the costs of workers’ compensation premiums too much for them to manage, but they also lack the resources to pay out in the event that a worker or their family wins a judgement against them.
Am I saying that a contractor can operate for years, not pay into workers’ compensation insurance, and then declare bankruptcy when the lose big in court? Absolutely. If you think about it, for most basic cell tower maintenance, a company needs little more than a truck, some tools, and employees with moxie. None of those things are particularly expensive. Since most of these same contractors don’t leave a lot of money in a company bank account, the company lacks the assets to pay a judgement in the event that an injured rigger wins a substantial settlement in court.
In extreme instances, these circumstances can lead to a seriously injured worker getting nothing, even if it was unsafe practices from their employer that led to their injury. These are certainly the exception, and not the rule, but it is an extra risk that cell phone tower workers have should be aware of.
Is a Cell Phone Tower Worker a Contractor or Employee?
One other wrinkle for tower workers exists in the law. I mentioned earlier that one of the appeals of hiring contractors versus employees is that the company that hires the contractor isn’t on the hook for most injuries that result from the work. One might be inclined to ask, “Then why don’t all employers just hire contractors and do away with employees altogether?” It’s a fair question. The reason they don’t is because part of hiring someone else to do a job involves surrendering a measure of control over how it is accomplished.One might be inclined to ask, "Then why don't all employers just hire contractors and do away with employees altogether?"
For instance, the law firm could reclassify me as an independent contractor instead of an employee, but as long as the firm continued to set my hours, told me where to work, how to produce blog entries, and continued to exercise control over me, it doesn’t matter what their paperwork says. For many legal purposes, I’m still an employee.
The same principle applies to all workers, including tower riggers. While I don’t pretend to have special knowledge about how telecommunications companies oversee their contractors, there has been a growing and noticeable trend in recent years whereby companies try to obtain the benefits of contractors, while retaining the control that comes with having employees. Were a cell phone company to cross this line and trade the benefits of having contractors in exchange for more control, they might unwittingly open themselves up to liability when an injury occurs.
In the event they did cross that line, then the contracting company could be on the hook for the losses sustained by a worker who was injured or killed on the job. Admittedly, we don’t know of any instances where a cell phone provider has had a contractor classified as an employee in a work accident case, but at the same time we aren’t aware of any cases where the facts would warrant an attempt to do so.
For a moment, this particular scenario resides squarely in the realm of legal theory. However, given that the corporate tide is moving in the direction of companies attempting to exercise greater control over their contractors, it’s a theory that may soon have real-world consequences.Strong Winds: Acts of God and “Acts of God” How Might New Safety Equipment Affect Texas Work-Injury Law? The Legal Landscape Can Be Murky For Injured Cell Tower Workers What Elements Make a Commercial Loading Dock Dangerous? Law Professors Misunderstand Texas Work Injury Law
Why Does Any of This Matter?
The last thing that an injured worker or the family of a deceased worker has in the aftermath of an accident is time to become an expert on work injury law. This can create problems since I think the general public expects that if they’re injured doing their jobs, they’re going to be taken care of. These concerns aren’t unique to tower workers.
The difference is that most of us don’t do our jobs between 200 and 500 feet off of the ground, braving crosswinds and bees. When you add in that a large portion of the work is done by contractors of variable business acumen, you have a particularly troublesome recipe for workers having to pay for their own on-the-job injuries.
While it may be the last thing injured workers have on their minds, finding out what area of the law applies to them after an injury is crucial to making sure that they’re not left footing the bill. Some companies, especially those who don’t participate in workers’ compensation, have very strict timelines for reporting an injury. Meeting these deadlines can be the difference between getting all the benefits that a company offers and being left out in the cold.
It goes without saying that the on-the-job risks that come with working on cell phone towers are much greater than say for a writer behind a keyboard. One would think that getting the help that one needs for a work injury would be easier for a person in a more dangerous line of work, but that isn’t always the case. Cell phone tower workers perform a vital, but dangerous job in our society. The least they deserve is the peace of mind that comes with knowing they and their family will be taken care of if the worst happens.