Bear Mauling Illustrates Employers’ Risks

Grizzly Bear Attacks WorkerCountless employers across the country enhance their bottom line by classifying their employees as independent contractors.  As stated in a previous post, this has the immediate practical effect of saving employers significant costs in the form of taxes and insurance premiums, and also benefits employees by putting extra money in their pockets that would otherwise be deducted from their paychecks in the form of social security, FICO, and other deductions.

Naturally, there are drawbacks to this approach.  Employers face an increased risk of IRS employment tax audits, and employees are generally not entitled to unemployment or worker’s compensation benefits in the event they are terminated or injured on the job.  Events such as these can also lead to additional unfortunate repercussions to the employer.

A recent decision by the Montana Supreme Court in a worker’s compensation case provides an illustration of these risks. In the unusual case of Hopkins v. Uninsured Employers’ Fund, the employer, was a privately owned bear park called “Great Bear Adventures.”  People visiting the park were allowed to observe Grizzly bears frolicking and doing whatever else bears do from the safety of their cars.

The employee, named Brock Hopkins, was an “independent contractor” who was often assigned the unenviable task of feeding the Grizzlies.  Perhaps because of the stress associated with this responsibility, Hopkins often smoked marijuana before coming to work.  An interesting twist: his boss sometimes joined him.

Not surprisingly, Hopkins was mauled.  Badly. On November 2, 2007, as Hopkins was feeding them, he was attacked by an enormous Grizzly Bear named Red. Red knocked Hopkins to the ground, sat on him, and bit his leg, knee and rear-end.  Hopkins was at Red’s mercy, and he was no doubt preparing to meet his maker when another bear named Brodie suddenly attacked Red, who then moved off of Hopkins.

Given this respite, Hopkins escaped by crawling under one of the electrified wires surrounding the pen, and he was airlifted to a hospital where he was treated for severe injuries.

Hopkins applied to collect worker’s compensation benefits, contending that his injuries arose out of the scope of his employment.  This was opposed by his employer, who argued that Hopkins was not an employee but an independent contractor, and that his services had been provided on a volunteer basis only.  In addition, the employer argued that fact that Hopkins was high as a proverbial kite when he fed the bears on that fateful day was a contributing factor to the attack.

On appeal to the Worker’s Compensation Court held otherwise, a decision that was confirmed by the Supreme Court.  Worker’ Compensation Court Judge James Jeremiah Shea found that Hopkins was an employee because the bear park controlled or directed his activities during the course of the work day.  It was also ruled that Hopkins sustained compensable injuries arising out of and in the course of his employment, and that Hopkins’ use of marijuana was not a major contributing cause of his injuries, and did not disqualify him from receiving an award of benefits.

The judge noted that “when it comes to attacking humans, grizzlies are equal opportunity maulers; attacking without regard to race, creed, ethnicity, or marijuana usage.” The judge also characterized Hopkins use of marijuana to “kick off” a day of working with grizzly bears as “ill-advised” and “mind-bogglingly stupid.” There was no evidence, however, that the pot smoking contributed significantly to Hopkins’ injuries.

What can one conclude from this sordid tale?

1. Employers are advised to seek the advice of an attorney before electing to treat employees as independent contractors.

2. Be certain to incorporate a clear  workplace anti-drug policy and make employees aware of it.  Also, don’t violate that policy by smoking pot with your employees.

3. Finally, if part of your employee’s duties include the feeding of Grizzly Bears or any other large land predator, consider having another employee standing by with a tranquilizer gun.

NOTE: I have never been to Montana, so bear attacks during the work day may be commonplace.

 



Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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