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Legislature’s Corporate Immunity Bill Denies Widow Worker’s Comp Benefits from Smithfield

Craig Franken was the second slaughterhouse worker to die of coronavirus in the first big surge of the pandemic at Smithfield Foods in Sioux Falls in April 2020. His widow, Karen Franken, thought maybe Smithfield ought to pay some worker’s comp for the loss she suffered due to Smithfield’s cavalier attitude toward pandemic prevention.

Luckily for Smithfield, South Dakota law says otherwise:

Second Circuit Judge Jon Sogn sided with Smithfield Foods in the case, which originated as a claim for death benefits through the South Dakota Department of Labor (DOL).

The DOL denied the claim, citing a 2021 law offering blanket immunity from liability to employers, schools and establishment owners for any claims tied to COVID-19 unless the claim involved intentional exposure to the virus.

…Franken had also argued that the law was unconstitutional for denying due process rights, and that lawmakers didn’t intend to bar worker’s compensation claims.

Lawyers for Smithfield, meanwhile, argued that the South Dakota liability waiver covers both lawsuits and worker’s compensation claims, which are dealt with in a separate chapter of South Dakota law and classified as “administrative special proceedings.”

They also argued that the COVID-19 infection ought not be classified as a workplace injury for insurance purposes, that Franken failed to give proper notice of the constitutional challenge to the South Dakota Attorney General’s Office, and that the retroactivity of the 2021 law was clear [John Hult, “Judge Rules Against Widow in Covid-19 Worker’s Comp Case,” South Dakota Searchlight, 2022.11.29].

The retroactive law in question, 2021 House Bill 1046, passed with bipartisan support, including that of Democratic Representatives Jamie Smith and Linda Duba from District 15, which includes the Smithfield slaughterhouse. District 15 Democratic Senator Reynold Nesiba opposed 2021 HB 1046.

12 Comments

  1. sx123 2022-11-30 07:19

    “…unless the claim involved intentional exposure to the virus.”

    I doubt most workplace injuries and deaths are the result of intent. Rather, they are the result of neglect.

  2. leslie 2022-11-30 08:01

    Noem and the Smithfield executive (she later dissed), intended this very result when they defeated, along w/Trump in April, the CDC’s pandemic mandates after Smithfield and the Greeley packing plants became hotspots from (disease “peculiar to the occupation in which the employee was engaged”).

    Noem is a predator. Flame-thrower is no accident.

    Cory, echoing LCJ on another thread, you have hit it out of the park with these recent threads! Major kudos. (And LCJ apparently has a heart after all!)

  3. Jenny 2022-11-30 08:11

    Darn, anyone that ever wants some justice in SD is always “failing to give proper notice” to the AG office.

  4. O 2022-11-30 09:20

    In the early days of COVID, states acted to protect either worker or corporate interests — usually around workers comp claims and defining presumed fault. SD sided with business and held them harmless if workers got COVID on the worksite and insulated them from worker comp claims. If you go COVID from exposure at work, you were on your own health insurance (or lack thereof) for those costs.

    That seemed like a natural step from a “right to work” state.

  5. Mark Anderson 2022-11-30 10:57

    It’s sad that some Democrats joined the Republicans on this one. Republican’s are always the killer party the Demo rats not so much.

  6. All Mammal 2022-11-30 13:28

    Wouldn’t those hushed emails where KN colluded with Smithfield to knowingly ignore the CDC for several months and keep the shoulder-to-shoulder assembly line on the cutting floor operating without any covid personal safety equipment provided prove “intentional exposure to the virus”?

    Mr. H exposed those emails in an article awhile back. I will fish them up next time I get a free minute.

  7. P. Aitch 2022-11-30 13:45

    Here’s a list of how all 50 states addressed the issue of immunity from civil lawsuits pertaining to not protecting your workers from Covid exposure.
    PS.- Minnesota and Colorado didn’t give such immunity. In CO any immunity given to medical institutions is void two years after the end of Covid.

    – What’s a “tell” is that the backwater, haybilly legislature in SD thinks these types of shields attract new businesses and create an “open for business” attraction. If true, why don’t businesses with a national presence choose SD? Businesses with a national presence have an entire division that monitors public relations, and that division unilaterally views SD laws, such as this one, as bad for public relations.
    *Note to Ian Fury: Hurting employees is bad for business.
    **Note to CBS 60 Minutes: This story of a dead man’s wife getting screwed by a Chinese company and a MAGA Governor has legs.
    https://www.huschblackwell.com/newsandinsights/50-state-update-on-covid-19-business-liability-protections#linktojump6

  8. 96Tears 2022-11-30 14:57

    AM – I was wondering the same thing.

    https://dakotafreepress.com/2022/05/13/noems-advisor-seidel-leaked-cdc-draft-covid-recommendations-for-smithfield-to-corporate-exec/
    The House Subcommittee on the Coronavirus Crisis includes in its new report on Big Meat’s corporate capture of the Trump Administration includes emails indicating that Governor Kristi Noem’s office was feeding Smithfield information to help it lobby the CDC for weaker health recommendations at the beginning of the coronavirus pandemic.

    In early April, 2020, worker advocates sounded the alarm about increasing coronavirus infections and unsafe working conditions at Smithfield Foods’ slaughterhouse in Sioux Falls. While Governor Kristi Noem and Sioux Falls mayor Paul TenHaken asked Smithfield to shut down for a couple weeks to mitigate the spread of coronavirus, Governor Noem also criticized the media for being too hard on Smithfield. Noem’s other public statements at the time signaled she was more interested in using her connections in Washington to amplify Smithfield’s propaganda and help Smithfield achieve its CEO Kenneth Sullivan’s stated objective of continuing to operate “unabated“.

    Part of the Governor’s running interference for Smithfield appears to have included leaking the CDC’s initial draft of recommendations for coronavirus prevention at the Sioux Falls slaughterhouse.

    And from May 13:

    https://dakotafreepress.com/2022/05/13/tyson-smithfield-wrote-trump-executive-order-to-keep-slaughterhouses-open-during-pandemic/
    Remember how those thieving meatpackers lied to us about meat shortages at the start of the coronavirus pandemic? Smithfield and other Big Meaters didn’t just use those lies to pressure the Trump White House to issue an executive order in April 2020 ordering wiener factories to stay open despite the risk of spreading covid-19; they helped write the order to allow them to keep cranking out sausage regardless of the mortal danger they knew their workers faced:

    It’s been reported that the meatpacking industry wrote a draft version of President Donald Trump’s executive order, but the new Congressional investigation shows that Tyson Foods — mostly in collaboration with Smithfield Foods — authored the specific language that the industry pushed to federal officials. Similar language in Tyson’s draft would appear in the finalized executive order signed a week later.

    …The report, compiled by the staff of the House Subcommittee on the Coronavirus Crisis and released Thursday, reveals that the country’s largest meat companies coordinated with each other — and with political appointees at the federal agency charged with their regulation, the U.S. Department of Agriculture — to keep meatpacking plants operating at maximum capacity while thousands of workers were infected in the COVID-19 pandemic’s early months.

    Meatpacking industry leaders understood the threat coronavirus posed to their employees, emails show. But rather than enforcing safety measures, such as social distancing and masking, the companies instead asked the federal government to exclude them from public health measures meant to protect employees from illness and death [Madison McVan, “Tyson Foods Authored Draft Version of Trump’s 2020 Executive Order to Keep Meatpacking Plants Open During Covid-19 Pandemic, Emails Show,” Midwest Center for Investigative Reporting, 2022.05.12].

    The House Subcommittee reports that over 59,000 meatpacking workers were infected with coronavirus and at least 269 died. But rather than take more precautions to protect workers, Mark Kaminksy of Koch Foods said in a May 22, 2020, email that the meatpackers shouldn’t have to do anything more than take employees’ temperatures and send them home if they had fevers, and lobbyist Ashley Peterson of the National Chicken Council replied, “I agree with you Mark. Now to get rid of those pesky health departments!”

  9. Mark Anderson 2022-11-30 15:02

    Noem will of course demand that the WH Group cease operation. We can’t have the Chinese feeding us pork, that’s Kristi’s job.

  10. grudznick 2022-11-30 19:08

    Mr. H has been blogging with some real take lately. His NDS must be in partial remission, and he is giving some actual take.

  11. leslie 2022-11-30 21:08

    Well done 96. Of course Noem likely has some sort of officer immunity and/or insurance against her bad faith breach of trust with residents who were forced to work in fatalistic conditions.

    Trump called it essential work. McDonalds. Two criminals. And corporate malfeasance. And the lobbiest. JFC

    oh, and bahahaha Ugly-eyed old goat.

  12. All Mammal 2022-12-01 01:28

    96- You’re on it like KM on meth. Thank you for rooting those exact articles out of Mr. H’s archive. If that doesn’t help every widow prove our greedy governor and her cronies put spouses and sons and daughters and mothers and fathers in the ground, we all might as well embrace lawlessness and say screw it to personal responsibility.

    I’ve never been the sue-happy sort, but there needs to be consequences when crimes are committed. People are dead because of the intentional risks of their employer. What is the purpose of OSHA, if not to protect employees? What is the purpose of a governor, if not to keep citizens safe? What do we have courts for, if not to hold killers accountable? A legislature is worthless if they make laws that protect criminals. They’re all about as useful as teats on a boar.

    Meanwhile, the death toll keeps on a climbing. Not thanks to corona virus. Thanks to the killers we elect and who they choose to protect.

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