Mesothelioma Asbestos Lawyer, DuBose Law Firm, PLLC

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Ben Dubose

Ben DuBose has over eighteen years of asbestos and serious personal injury litigation experience, successfully fighting for hundreds of mesothelioma victims in courts throughout the United States

Contractor or Employee? California Legislature Decides.

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Is your Uber driver a contractor or employee? What about the person delivering your favorite meal through DoorDash? California legislators passed a bill, called AB 5, on September 11 requiring employers that utilize contract workers to perform ‘gig’ type work, to change the status from contractor to employee. Governor Gavin Newsom has not signed the bill, though it is expected he will after current negotiations are resolved. Primarily this includes ride-hail drivers (like Uber and Lyft) and delivery couriers (like DoorDash) but could become more far-reaching. Other possible occupations include nail salon workers, janitors, construction workers, home repair, and telemarketers. Some exemptions* in California already exist.

Contractor or employee – ABC guidelines

There are ABC guidelines that establish the classification of an independent contractor. These workers would not be considered employees:

(A)  free from the control and direction of the hiring entity – in fact as well as by contract;

(B) the work performed by the person is outside the usual course of the hiring entity’s business; and

(C) the person hired is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. 

This definition of an independent contractor does not generally fit ride-hail and delivery drivers.

Worker benefits

Currently California contract workers do not receive employee benefits such as vacation time, paid sick days, overtime, and reimbursement of expenses. As employees, they would receive these plus the ability to unionize and eligibility for unemployment insurance and workers’ compensation. They would have the security they currently lack. 

Employer objections to AB 5

Some employers, such as Uber, have proposed similar benefits without the classification as employees. They stress the flexibility workers currently have that they may lose as employees. Some small, often family businesses such as vineyards, or auto shops, are fearful of the effect it could have on their businesses.

The larger companies, such as Uber, threaten that this law can lead to eliminating many drivers – especially those in low traffic areas that would not justify the benefits of an employee. They also suggest schedules might need to be initiated, ridding drivers of the flexibility they desire. Experts, however, say the bill does not require set shifts, with Uber and Lyft entitled to continue letting drivers make their own schedule decisions. In fact, it would be strategic to use incentives, such as bonuses, to ensure there are sufficient available drivers at certain times and in certain places.

Current status

  • In last minute ammendments, California legislators gave larger cities the right to sue if companies don’t comply.
  • Uber, Lyft, and DoorDash pledged $90 million to support a ballot initiative that exempts them from the new law.
  • Though most drivers support the bill, many oppose it from fear it will limit their flexible schedules.
  • In July and August, Uber and Lyft worked on an agreement between labor groups and the governor’s office to establish a new category between contractor and employee while giving a minimum wage and the right to organize. The negotiations disintegrated, but company officials are optimistic a deal can be negotiated after the bill is passed.

Beyond California

New York, Alaska, and Oregon – and almost half the states –  already determined ride-hailing drivers were employees under current state laws for specific purposes. However, these findings could be overturned by new state laws clearly identifying drivers as contractors. 

There are still hurdles to make this a law across the country. For now, California with AB 5 is setting the standard, and it will be an example to other states as they deal with this massive change in the current working environment of millions of workers in California alone.

When this bill becomes law, we anticipate a law that gives security, benefits, and confidence to all contract workers in California.

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Exemptions

Specific categories of workers:

Includes (i) individuals licensed by the Department of Insurance; (ii) real estate licensees; (iii) physicians, surgeons, dentists, podiatrists, psychologists and veterinarians licensed by the State; (iv) licensed lawyers, architects, engineers, private investigators and accountants; (v) securities broker-dealers and investment advisors and their agents/representatives registered with the SEC or FIRA or licensed by the State; (vi) direct salespersons who otherwise meet Unemployment Code conditions;  and (vii) certain commercial fishermen.

Six-part test for exemption in the fields of graphic design, marketing, writing, editing, freelance photography, and human resources:

  1. Maintain a separate business location (which can be their home);
  2. Have a business license in addition to any required professional licenses;
  3. Have the ability to set or negotiate their own rates;
  4. Set their own hours (other than project deadlines);
  5. Customarily engage in the same kind of work with another entity or holds themselves out to other potential customers for the same kind of work; and
  6. Customarily and regularly exercises discretion and independent judgment in the work.

E-Cigarettes and Teen Risks

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E-cigarettes and teen risks become more evident as teens, young adults, and even children are showing the danger signs of using these e-cigarettes in all their various forms. 

What are e-cigarettes?

An e-cigarette comes in many forms, but all have a battery that heats a liquid that turns into an aerosol containing nicotine, flavorings, and other chemicals. Like regular cigarettes, users inhale everything that is in the device and also affect others with the aerosol, much like second-hand smoke.

Not only do they contain nicotine, they can also be filled with marijuana or other drugs. The aerosol flavoring may contain diacetyl, linked to serious lung disease. In addition, the aerosol may contain cancer-causing chemicals, heavy metals – lead, nickel, tin – and ultrafine particles that can penetrate deeply into the lungs. E-cigarette aerosol is NOT harmless “water vapor.”

While packaging may claim there is no nicotine, that has proven wrong in many cases.

The many forms of e-cigarettes

While they began appearing somewhat larger than a traditional cigarette, they have morphed into a variety of shapes. JUUL is the top-selling e-cigarette and often appears as a USB flash drive. One JUUL pod has the equivalent of a 20-pack of cigarettes! Because of their easily hidden size, they are students’ favorite device. JUUL is not the only one with this USB design, however. Others include MarkTen Elite for nicotine, and PAX Era, which delivers marijuana.

Besides the USB form, e-cigarettes can look like pens, pipes, cigars, or even regular cigarettes. They have their own vocabulary as well, they may be called “e-cigs,” “e-hookahs,” “mods,” ‘vape pens,” “vapes,” “tank systems,” and electronic nicotine delivery systems (ENDS).” No matter the name or clever packaging, they are unsafe.

Why is vaping unsafe?

Vaping is now linked to lung diseases in as many as 50 people in at least six states. No deaths are reported – yet – but several have been close calls. One of the most recent is a teen in Texas who contracted a lung disease after vaping. A New York doctor saw two cases this summer, including an athletic 18-year-old who almost died. The Texas Department of State Health Services (DSHS) has encountered a number of severe lung problems in Texas young people recently.  These patients were e-cigarette users, so the agency is looking into possible causes within or in addition to the vaping. They issued an alert to health care providers and clinicians to watch for symptoms and gather information.

A partial list of reasons the vaping liquid, and the device itself, can be harmful:

  • Nicotine
    • Long-ranging studies have proven the harmful effects of nicotine. This is especially true for developing brains. These changes actually affect the way a brain functions in attention and impulse control. Like nicotine from regular cigarettes, e-cigarettes can increase addiction to nicotine and possibly lead to addiction to other, even more harmful, drugs.
  • Aerosol ingredients
    • Some flavorings may be safe to eat because they’re processed through digestion. Inhaling, however, is a different process and lungs are not geared for inhaling these chemical flavorings. Because of this, scientists believe lungs could be harmed.
  • Batteries
    • There have been a number of instances where defective batteries led to serious injuries through fires or explosions.
  • Health effects
    • Scientists still do not know the full effects of e-cigarettes over time, but studies to date indicate harmful effects are likely.

How to prevent or stop the use of e-cigarettes

In Texas, the legislature is considering raising the minimum age to purchase or consume tobacco products from 18 to 21. This would include all e-cigarettes and other vaping devices. The mission of this bill is to prevent future smokers since 95 percent of smokers start before the age of 21.

While vaping devices appeared to some people as an innocent way to avoid the dangers of cigarette smoking, it is now known that it may actually introduce young people to smoking and may have the same unhealthful effects – or even more – as scientists investigate the repercussions on these youthful users.

The CDC has a number of suggestions that parents can use for having a discussion with your teen, including this Tip Sheet. An ongoing conversation can make a difference. While it may not be well-received, stopping an e-cigarette user before they’re addicted is worth the persistence.

Finally, One Less Worry for 9/11 Responders

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With passage in the House and Senate of a 9/11 first responders bill, and signed by the president, there is finally one less worry for 9/11 responders. This legislation is named for three responders who gave their lives in the aftermath of 9/11. It is now known as “Never Forget the Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11 Victim Compensation Act.”

The men behind the bill’s name

Zadroga, a N.Y.C. officer, in 2006 was the first to die. He passed due to a respiratory disease brought on by his exposure to the clouds of toxic particles. Next was Pfeifer, who died after fighting cancer for eight years in 2017. He worked for eight months digging through the rubble that had been the towers. Finally, this past June 29th, Alvarez, a NYPD detective, died just weeks after testifying and fighting for permanent healthcare and compensation for those physically affected by the 9/11 aftermath. He spent three months on ground zero giving aid for the recovery efforts that led to 69 rounds of chemotherapy. Each of these men fought for ongoing healthcare for first responders.

One less worry

While relieved the fight for healthcare is over, the 18 years of fighting for assistance leaves many exhausted. Most survivors are too sick to continue trips to Washington fighting for additional funding. This bill assures them that their health problems are covered until 2092, allowing them to concentrate on their medical treatments and their families instead of repeated trips to D.C.

The people who never gave up

The firebrand who famously advocated for this bill was Jon Stewart of the “Daily Show”. He brought attention of this appalling situation to the public as well as congress. An original co-sponsor of the 9/11 Victims Fund, Rep. Carolyn Maloney, D-NY, was very vocal in her pursuit of justice for these men and women. Rep. Maloney vowed to wear a FDNY firefighter’s jacket, beginning in February, until the bill was passed in her effort to publicize the urgency. Other Democrats who were crucial to the passage were Chuck Schumer and Kirsten Gillibrand, Senators from New York. Republicans named were Representatives Chris Collins, Mark Meadows, and Deb Fischer. John Feal, a first responder who suffered a crushed foot at ground zero and an outspoken advocate said, “I’m going to ask my team now to put down your swords and pick up your rakes and go home, and hopefully, we don’t have to come back.”

Only two senators did not vote yes: Sen. Mike Lee, R-Utah, and Sen. Rand Paul, R-Ky. Both affirm they support healthcare for survivors, but wanted money set aside to fund the bill.

The human statistics

Over 70,000 people applied to the program when it was known as the Zadroga Act. At this time, more than 32,000 enrollees now have developed respiratory or digestive diseases – and 705 people have died from them. Cancer is also an outcome, with close to 9,000 first responders afflicted and 600 who succumbed to the disease. Among the many toxins encountered in the dust and debris was asbestos. This mineral has no safe level of exposure and is known to cause many diseases, including the deadly mesothelioma. Experts reviewing these statistics warn that the deaths from the aftermath will exceed the 3,000 people who died that horrible day and may have already exceeded that number.

Sponsor statement before passage

Sen. Kristen Gillibrand who was chief sponsor of the bill, said, “Our 9/11 first responders are sick and dying, and too many of them have spent too much of their precious time left fighting to convince Congress to pass the 9/11 VCF bill. This legislation has strong bipartisan support and the votes in the Senate and the House to pass this bill as soon as it comes to the floor. This all comes down to political will and whether Congress is truly willing to ‘never forget’ the heroes of 9/11.”

Finally, one less worry for 9/11 responders.

Colombia Banned Asbestos!

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In a unanimous ruling of the Colombian Congress, Colombia banned asbestos effective immediately. The ruling makes Colombia the seventh country in the world to completely ban the mineral and it joins over sixty countries. This is a positive step to ridding the world of new asbestos products in Colombia and throughout the world.

Victims were invited to the Congress before the final vote to share their testimonies about the illnesses and deaths they, and others, experienced because of asbestos. This deadly mineral is already at least partially banned in 60 countries; however, in the United States it is still not banned though there is world-wide scientific consensus there is no safe level of asbestos.

What does this mean for Colombia?

The Colombian Congress debated for 12 years before coming to this agreement, but now there is a complete ban. Companies that produce floor tiles, adhesives, cement products, coatings, pipeline wrap, felts, and reinforced plastics and many other products will be affected. By 2021, they must change to non-harmful compounds rather than asbestos. They will be aided in the change by the Ministry of Labor. Additionally Colombia banned asbestos mining and exportation.

Why ban asbestos?

The World Health Organization (WHO) estimates 100,000 people die each year worldwide due to asbestos. Colombia estimates 1700 citizens died from asbestos exposure over the past 50 years. Exposure to the mineral can lead to lung cancer, asbestosis, and the deadly malignant mesothelioma. Mesothelioma can take up to 50 years for diagnosis, but once diagnosed victims rarely live beyond two years. Fibers generally enter through the lungs. Since there is no safe level of exposure, a complete ban is essential to human health.

There will still be asbestos in products produced before the ban, this is a great first effort for Colombia to eliminate asbestos in their environment.

Suit Filed on the EPA to Strengthen Asbestos Regulations

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Eleven attorneys general covering the District of Colombia and ten states went to court with a suit filed on the EPA for more stringent asbestos regulations. Though the Environmental Protection Agency (EPA) announced a restrictive rule on asbestos in April, they did not ban the deadly substance. The suit filed would force the EPA to proclaim a new, and more thorough, asbestos reporting rule after the EPA denied a petition to gather more data on asbestos.

Asbestos danger leads to suit filed on EPA
No safe level of exposure

California Attorney General Xavier Becerra said in a release addressing the suit filed on the EPA, “It is widely acknowledged that asbestos is one of the most harmful and toxic chemicals known to humankind. While it’s troubling that we must once again take the EPA to court to force the agency to do its job, we won’t pull any punches. There’s too much at stake to let the EPA ignore the danger that deadly asbestos poses to our communities.”

Dangers of asbestos

Asbestos was widely used in a multitude of situations, including construction, mining, shipbuilding, and fireproofing. Use of the material was mostly banned by the end of the 1970s. However, it still exists in homes, businesses, schools, and commercial buildings constructed before 1980. There is no safe use, so proponents for a complete ban have been active for many years.

While its benefits for insulation and fireproofing made it a prime component of construction, its tiny fibers – when disturbed – are easily inhaled by workers or anyone in the vicinity. Asbestos still kills thousands of people each year – some who were exposed 50 years ago due to its long latency period. This can show up in mesothelioma, lung cancer, and asbestosis.

The April EPA rule

This rule was the first EPA action on asbestos use in 30 years, but critics claim that it could still allow some asbestos products to be reintroduced in the market. Alexandra Dapolito Dunn, assistant administrator of the EPA’s Office of Chemical Safety and Pollution Prevention stated, “If there is any unreasonable risk, the EPA will regulate, and our regulation could take the form of a ban.” But Democrats want to see action – meaning a full ban, not more rules that they perceive as loopholes to asbestos use.

Melanie Benesh, legislative attorney at the Environmental Working Group, wrote, “This new rule makes it more difficult for industry to resume some abandoned uses of asbestos, but that is a half-step at best.” An outright ban “is the only way the public can trust industry will never again be able to use this dangerous material that has literally killed tens of thousands of Americans.”

States in suit filed on the EPA

The ten states suing include: California, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Minnesota, New Jersey, Oregon, Washington, and the District of Columbia.