LITTLE ROCK, Ark. — A major industrial company that’s received millions of dollars in incentives from the state also has a history of injuries in its facilities. Former workers say the company has maimed and killed people with little accountability to prevent it from happening again, thanks to a “dual employment doctrine” that leaves temporary workers at risk.
“I pay the costs to make my family smile and make them happy. I pay the cost every day,” Kenneth Rainey said, without much of a smile.
While most people wouldn’t say playing with their children or prepping to go to school is a big cost to pay, they probably don’t live life the way Kenneth Rainey has since 2014.
“Nobody can understand what this is like,” he said. “The pain — the feeling that you don’t have a leg, but it feels like you have a foot down there.”
72 Hours Changed His Life
Rainey worked as a tree trimmer, but he was hired by Elite Temp Services and put to work at Welspun Pipe’s Little Rock facility for extra money in the down season. He had been on the job just three days. He was responsible for grinding down sharp edges of huge pipes that would automatically dispense down a conveyor belt. According to Rainey, he had received little to no training on how to do the job, and being on the graveyard shift the supervisor who was supposed to be training him spent about 10 minutes explaining what he needed to do.
The rest was up to him.
“I felt the line shaking — I turned around the pipe was right up on me,” Rainey said. “It should have shut off, because from what I knew I was standing on the mat that shouldn’t have allowed the pipe to come down.”
Life as Rainey knew it would come to an end that night. Speaking to KARK it was the first time he had spoken in detail, publicly about the accident.
“It catches my pant leg, and it starts to reel me in from up underneath the pipe,” he said, with tears in his eyes. “I felt my leg crushing. I could see a sliver of light between the two pipes, and I was screaming for help, but no one could hear me.”
Eventually, fellow workers would come to his aide and extract him from the pipe. Before he bled out, he was rushed to the hospital. That’s where his memory picks back up after blacking out from the pain.
“I don’t remember anything else until they woke me up and asked if I wanted to keep my leg or not.,” he said. “They told me, ‘We can put a bar inside of it, but you would just be dragging around a dead leg.'”
Rainey walked away with his life, a prosthetic left leg and a right foot in need of multiple reconstructive surgeries. His career as a tree trimmer now seems like a distant dream, he would require a motorized bucket to ever get back up to the treetops.
The Penalty: $7,000 and a Promise for Safer Performance
According to an OSHA report, stencil paint clogged up a control knob, which allowed the pipe to come down the conveyor right at Rainey. Welspun denied that there were any issues with the knob, and even claimed it had been replaced and tested in the fall the year before. However, OSHA investigators noted that after the accident, employees revealed the control panel had been cleaned and the knob replaced.
“I didn’t do nothing but show up to work on time. That’s what I did,” Rainey said. “I thought I would be going home to my kids after that shift just like any normal day. As I waited for the ambulance, I was looking at the supervisors’ faces. I could see it all over their faces, shock — and the idea that this could have been them.”
The India-based company said Rainey was the one who broke the rules, alleging he received training that he ignored and that put him at risk. Ultimately, though, OSHA found limited training and little on-site supervision, in addition to equipment failure, were the problems. Welspun would only pay about 7,000 in fines for the accident after a settlement agreement. OSHA mandated the facility make changes, again.
A History of Workplace Injuries
This was a repeat violation for Welspun. It had a history of serious, willful violations within the past 5 years. In 2011, it had a fatality and two employees injured. All three of those victims were barred from suing Welspun for negligence, even though OSHA found safety violations inside the plant that may have contributed to the accidents.
“It bothers me that we can have a foreign investor come to our country and not be responsible for the people who it has in its plant,” said Little Rock attorney Paul Byrd.
Byrd represented family members of Frederick Bogar, the temporary worker who died in the 2011 accident. But the Workers Compensation Commission ultimately found that as a temp worker, Bogar was a dual employee and was out of luck.
“Whose responsibility do they become when they’re horribly injured and can’t work anymore? They become the taxpayers’ responsibility,” Byrd said. “The capitalistic system that we all live and work in works because there are balances. There are economic incentives for companies to keep people safe while also weighing that against production demands. The dual employment doctrine and these temporary worker situations has thrown that out of balance.”
According to Byrd, at the time Bogar was employed as a temporary worker, Welspun and Elite had a staffing service agreement in which Welspun was indemnified if the worker was injured at the plant, and the agreement provided that Welspun could not be held responsible for any injuries a temporary worker caused to anyone else.
“This is a situation where a company is responsible for nothing. Had Welspun agreed to be responsible for the injuries caused to Mr. Bogar, or agreed to be responsible for injuries he caused to others, I would have a totally different perspective,” Byrd said. “I just wonder what kind of attitude that engenders toward these employees if I’m not responsible for their safety or the harm they might cause to others.”
According to workplace injury and illness logs maintained by OSHA, between 2012 and 2014 nearly three dozen injuries were reported at the plant, including falls, crushed fingers and crushed feet. Sources tell us those numbers were even higher around 2010, where roughly four dozen injuries were reported in a 20-month period, some minor and some that showed a real risk of serious injury or death.
Dual Employment: Double Whammy for Temp Workers?
The dual employment doctrine isn’t written into state law. Courts created it, and it has three requirements that must all be met. Those include an contract (express or implied) between the special employer and the employee; the work being done is the work of the special employer; and the special employer has the right to control the details of the work.
“It’s going to keep happening until they’re held accountable or until they have some sort of responsibility for what’s going on in their factory,” said Jessica Virden Mallett, Rainey’s attorney at the Peter Miller law firm.
Rainey’s attorneys argue that this doctrine has create a loophole that leaves workers at risk, one the legislature should consider closing.
“I think this isn’t an issue that has been explored enough by the legislature, especially as it relates to temporary workers,” she said. “We need to consider closing the loophole so companies can’t just hire temporary employees, as in Kenneth’s case cut off his leg and then have no repercussions at all.”
According to Mallett, Rainey never had a contract with Welspun directly or otherwise. During his entire three days at the facility, he identified himself as an Elite employee. When he had concerns over paint on the control panel and having to eat while at the conveyor line, he made those reports to Elite. Mallett also points to the handbook Rainey was provided that states he was solely the employee of Elite.
The issue of worker’s compensation insurance coverage is also an important point, according to Mallett. According to her, the staffing agreement between Welspun and Elite noted that the workers compensation insurance would be secured at Elite’s sole expense.
Welspun, in the past, has pointed to the premium the temp service is paid on top of the pay for the employee, which suggests a portion of that should go toward that workers compensation insurance. However, the agreement does not express a percentage break down or direction that Elite must spend a certain amount per employee toward the premium.
Furthermore, in a deposition Elite officials stated they believed Rainey would be an Elite employee because Welspun did not have the authority to terminate Rainey. While the company could request he not return to the plant, Welspun could not directly fire an Elite employee.
Welspun: No Comment
KARK reached out to Welspun to talk about some of the issues Rainey and his attorneys raised. A secretary relayed a “no comment” from an unidentified company official. A Welspun attorney was supposed to give us a call back, but we have not received any messages back from anyone on the legal team.
“Worker’s compensation wasn’t intended for dual employers to get off scott-free, which is what’s happening,” Mallett said.
Rainey’s case heads to a hearing on Monday. Regardless of the outcome, he says Welspun left a lasting mark.
“There are a lot of us walking around with Welspun tattoos,” Rainey said. “It’s a forever memory of a place that didn’t care about me.”
Rainey still takes steps to move forward with his life, even given the phantom pains and missing pieces of the man he was.
“You just try to fight to stay kind….and to stay basically human,” he said.
He has just one question from those who have the power to change the system: How much is your humanity worth and should a court-created rule deny you the chance to hold those responsible accountable?
According to the Arkansas Economic Development Commission, Welspun has received more than $7 million in incentives from the state since 2007, with ongoing payroll cash rebates we don’t know the full amount of. We’re told none of those benefits had any safety requirements tied to those funds.
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