Increase in Wage Theft Claims

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Today’s blog post was written by guest author Leonard Jernigan from The Jernigan Law Firm in North Carolina. Firm associate Brody Ockander also brought The New York Times story to my attention that Mr. Jernigan references. Here’s the link to the original story from the Times: More Workers Are Claiming ‘Wage Theft’. The firm’s blog has also included previous stories about wage theft, specifically Wage Theft Is Illegal And Immoral, written by Mr. Jernigan, and Wage Theft Another Assault on Workers’ Compensation, which was shared by Gelman on Workplace Injuries. As Mr. Jernigan uses North Carolina as an example, pretty much every state has a version of a Department of Labor that handles wage-theft issues. Here is a link to Nebraska’s form: Filing a Wage Complaint. In addition, many attorneys can be a resource for a person in this situation so please contact an experienced attorney, including those at our firm, if you have questions about a specific situation.

According to a recent article in The New York Times (Sept. 1, 2014), more workers are claiming wage theft by their employers. Worker advocates assert that violations of minimum wage and overtime laws, erasure of work hours and wrongful takings of employees’ tips are increasing in volume.

David Weil is the director of the federal Labor Department’s wage and hour division. Since 2010, Mr. Weil’s agency has uncovered almost $1 billion in illegally unpaid wages, with a disproportionate amount of immigrant victims. Weil believes the surge in wage theft is due to underlying changes in the national business structure. As large employers increase franchise operations as well as use of subcontractors and temp agencies, these companies deny any knowledge of wage violations.

A federal appeals court in California recently ruled that FedEx committed wage theft by labeling its drivers as independent contractors to avoid having to pay them overtime. New York’s attorney general, Eric T. Schneiderman, has recovered $17 million in wage claims over the past three years and in Nashville last February nine Doubletree hotel housekeepers were paid $12,000 in back wages owed by the hotel’s subcontractor. Wage theft is prevalent in North Carolina as well. According to the N.C Department of Labor 2012-13 Wage and Hour Bureau Annual Report, 4,244 complaints were investigated. Out of an estimated $2.4 million due, almost 73% of unpaid wages (over $1.79 million) were recovered for 2,168 workers. To file a wage dispute claim in North Carolina, contact the Department of Labor’s Wage and Hour Bureau at 919-807-2796 or 1-800-NC-LABOR.

Considering Priorities on Patriot Day

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“Where were you when the world stopped turning on that September day?” Alan Jackson, “Where Were You”

Have you heard that tune? While I don’t remember all the words, the internets can help with that, and the words definitely provoke some strong feelings and memories.

Today is Patriot Day. For so many people on Sept. 11, 2001, the change was swift and often tragic. Many people, all over the United States, are still living the ramifications of that day, whether directly or indirectly.

Life changes all the time, in an instant, for a friend, a family, or a community, even New York City. So what (and who) are your priorities?

While at a family gathering recently in small-town Nebraska, I found myself reflecting on priorities and how important it is to appreciate loved ones, both family and friends. It seems like Patriot Day also give a chance for entertaining such thoughts.

We were at a town that seems idyllic, but I’m sure people have their challenges and issues, as happens everywhere. This is also a town that was hit very hard by winds and baseball-sized hail earlier in the summer. No tornadoes, but there was plenty of damage. Many windows are still boarded up, and seeing people on roofs is a regular occurrence as homes are still being repaired.

During our visit, the scaffolding attached (or next to) to the house across the street collapsed. The two people on the roof (one of whom was the homeowner) were there amid the rubble, on the ground. They were at the highest point of the old house, so they both fell a good 20 feet. The volunteer fire department brought both of the town’s ambulances. The first responders, including a town policeman, were efficient and took great care in loading the gentlemen onto backboards and transporting them to the hospital.

Time can do funny things in a situation like that. Although 911 was called quickly and the policeman was there very fast, it seemed like it took forever for ambulances to arrive, although it really wasn’t very long, and it was very interesting to see the volunteer firefighters/EMTs meet the ambulances at the site for efficiency. All these vehicles descended at the house, and each first responder jumped out of his or her vehicle (you know you’re in a small town when …). They seemed to do a well-rehearsed dance, and you could see the hard work, concern and speed needed. We learned later that the two most likely would survive, but the extent of the damage they face is unknown, as each man on the roof broke his back.

Although I don’t know the people hurt, just as I didn’t personally know anyone in the Sept. 11 tragedy, it is still easy to empathize and think about the “what ifs.”

But it’s most important to face the new reality and call, write and hug loved ones. Because events and tragedy, whether personal or even nationwide, often elicit strong emotions in those who experience them. However, it’s the action afterwards that counts.

Please take that “where were you then” moment, think about it in the best way you know how, and then use it to provide a positive memorable moment for someone close to you. Because who are your priorities?

Happy Patriot Day.

Are You Really an Independent Contractor?

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“Calling a dog’s tail a leg does not make it a leg.” Abraham Lincoln

FedEx drivers recently won two class-action lawsuits in the 9th Circuit Court of Appeals. The court ruled that FedEx wrongfully withheld overtime pay, Social Security, unemployment, Medicare and other benefits to drivers because they were misclassified as independent contractors rather than employees. The decisions were driven by the fact that FedEx exercised control over the appearance of drivers as well as what packages to deliver, on what days, and at what times.

Though the FedEx decision only applies to Oregon and California, it is very possible that a similar decision would have been made under Nebraska law. Under the Nebraska Wage Payment and Collection Act as well as under the Employment Security Law, Neb. Rev. Stat. 48-601 et al., there is a five-part test as to whether a worker is an independent contractor or employee.

  1. Individual is free from control or direction under contract of hire
  2. Individual is free from control or direction as a matter of fact
  3. Service is outside the usual course of business for which service is performed
  4. Such service is performed outside of all the places of business of the enterprise which such service is performed
  5. Individual is customarily engaged in an independently established trade, business or profession.

Nebraska law creates a presumption of an employer-employee relationship. Tracy v. Tracy, 581 N.W. 2d 96, 7 Neb. App. 143 (Neb. Court of Appeals, 1998) In short, if you can answer most of those questions “no,” you are very likely an employee rather than an independent contractor. The mere fact that you may have signed a documents stating you are independent contractor does not necessarily mean you are an independent contractor.

In addition to protections under federal law, asking questions about your employment status is also a protected activity under Nebraska law. Being misclassified as an independent contractor could cost you thousands of dollars in wages and benefits. However, you have the ability to fight back if you are being misclassified.

How Employers Can Abuse FMLA

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Our colleague, Tom Domer in Milwaukee, recently criticized the media for their misleading coverage of “FMLA abuse” among public employees in Milwaukee. This criticism parallels our criticism about misleading coverage of an unemployment decision in Iowa. Domer pointed out correctly that FMLA leave is unpaid. The fact that FMLA leave is unpaid leave makes it possible for employers to abuse FMLA.

I represented a client with a personal health condition that temporarily prevented that person from doing heavy lifting. My client told human resources about this health condition, and that person was forced to take unpaid FMLA leave. Of course, under the Americans with Disabilities Act, there is an obligation to engage in an interactive process to determine what reasonable accommodations could be made so the disabled employee can perform the essential functions of the job. In the case of my client, there was evidence that that person’s employer did not engage in that process. Though my client’s case ultimately resolved, I doubt that my client is the only person who has had a similar experience with forced FMLA.

I suspect some employers use unpaid FMLA leave as a way to reduce payroll expenses even if an employee could perform the essential functions of their job with a few simple accommodations. So the next time you hear about employees abusing FMLA, remember that employers can abuse unpaid leave as well.

Offices Closed for Labor Day on Friday, Monday

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Labor Day

Please be safe, and have a happy Labor Day weekend.

The firm’s offices will be closed on Friday, Aug. 29, and Monday, Sept. 1, for the Labor Day holiday. We will be open on Tuesday, Sept. 2, at 8:30 a.m. 

May your 2014 Labor Day celebration be thoughtful, fun and safe. Here’s a past blog post that I wrote about Labor Day, and the main points remain much more poignant, as 2014 is an election year, and as I’ve been writing in recent blog posts, workers, whether injured or not, are greatly affected by those who are elected. Because keep in mind that many workers’ protections are being eroded by business in pursuit of profit, and nonunionized workers generally fare worse than those who belong to unions.

So as you go about your business – whether marching in a Labor Day parade, traveling safely through the last weekend of summer, enjoying quiet time at home, or even providing for your family by working – think about your life situation and reflect on those workers who have gone before to provide a better quality of life for workers today, regardless of individual job situation. I know I will do just that.

Happy Labor Day! What are your plans? And why do we have this day off of work? Is it to celebrate summer ending and school starting? In Nebraska, it might be to celebrate what is often the first weekend of Husker football and the last weekend of the State Fair.

But are there other reasons? Just like the origins of workers’ compensation, we can attribute the fact that we have a holiday to the American worker.

Labor Day – the first Monday in September – celebrates the contributions workers have made to the strength, prosperity, and well-being of America,” according to www.usa.gov.

Sources explain in varying amounts of detail the controversy over who founded Labor Day and how the “workingmen’s holiday” was celebrated on that day. But what isn’t up for debate is that unions and their workers were a very important part of developing Labor Day to celebrate workers’ contributions.

I am pleased to share that the state of Nebraska was actually one of the first to celebrate Labor Day and had passed legislation recognizing the holiday by 1890. Other states that were Labor Day pioneers included Oregon, Colorado, Massachusetts, New Jersey, New York, Connecticut, and Pennsylvania.

There are some romantic notions about how Labor Day came into being, and some sources even gloss over some of the gritty details, but Continue reading

Don’t Believe the Hype About Employment Law

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“Don’t Believe the Hype” when it comes to employment law.

This admonition was spurred by a misleading article and headline that I was e-mailed by Watchdog.org recently. The article was meant to spur outrage that a teacher who was alleged to have been drunk on the job but was allowed to get unemployment benefits in Iowa.

To Watchdog.org’s credit, they did include a copy of the actual decision. Just like in Nebraska, Iowa puts the burden of proof on an employer to prove wrongful termination. The district in exurban Des Moines never sent a representative to the hearing. The school district did not follow Iowa law in testing the teacher for drugs and alcohol. Neb. Rev. Stat. 1901-1910 lays out similar requirements under Nebraska law. Few people point out that if this teacher was such a bad employee, then maybe the school district could have spent a few hours proving their case or that they should have followed clear rules about drug and alcohol testing.

But of course, most people never get beyond the headline or the sound bite. The goal is to gin up outrage among “just regular folks” about people “milking the system” in order to get them to elect officials who will promote “personal responsibility” and “accountability.” Responsibility and accountability never seem to apply to management the same way they apply to employees.

Ginning up outrage about drunken teachers distracts from the war against workers and their allies in Nebraska and in Iowa and across the country. Fortunately, places like Iowa and Nebraska still have decent laws for employees and also have advocates who are willing and able to stand up for those laws. Regular folks in Iowa need to look at who is really trying to harm their interests on the job, and act accordingly in November. The same goes for those of us on the western bank of the Missouri River. This fall, Iowans and Nebraskans need to look beneath the carefully constructed, “regular guy” images of Terry Branstad and Pete Ricketts, and find out where they really stand, and vote accordingly.

Attorney Brody Ockander Presents at Translators’ Conference

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Attorney Brody Ockander

Firm associate Brody Ockander recently served as a presenter at the Nebraska Association for Translators and Interpreters (NATI) 2014 Annual Regional Conference in Omaha.

His presentation included information on both civil litigation and workers’ compensation.

“Many of the interpreters I spoke with are interpreters for various Nebraska courts,” Ockander said. “Therefore, it is helpful for these interpreters to have at least some background knowledge about how the civil court and workers’ compensation systems work in order to ensure the best possible interpretation for all parties. For non-English speaking persons, equal access to justice hinges on whether the interpreter does a good job.”

As part of its conference, the NATI also served as host to the American Translators Association (ATA) certification exam.

The firm’s attorneys need access to translators for the many languages that our clients speak, so it is helpful that Ockander was able to interact with this group and serve as a resource for their conference. I encourage the firm’s attorneys and staff to participate in continuing education and networking opportunities through professional associations and other occasions, taking the occasion to serve as both presenters and lifelong learners.

Thank you to Ockander for representing the firm as a presenter at this conference.

Why Your Vote Matters to Workers

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I frequently write about the intersection of workers’ compensation benefits for workers and politics. The bottom line on my comments is that workers, and citizens who care about workers, need to vote for candidates who will protect workers’ rights. These comments arise from a now quarter-century attack on workers’ compensation benefits by big business and insurance interests. Their power is almost incomprehensible in terms of the money they will spend to take away or limit benefits.

Recently, a Florida court found that the limiting of workers’ benefits in Florida has destroyed the “social bargain” that led to the creation of workers’ compensation. Workers’ compensation laws are slightly more than 100 years old. The notion of a bargain is workers got fast and fair benefits in exchange for giving up their right to full compensation. There have been a lot of discussions since the big business/insurance attack on worker benefits that the bargain is no longer fair.

The Florida court also found the exclusive-remedy rule unconstitutional. The exclusive-remedy rule deprives injured workers and their families of benefits for pain, suffering and non-occupational disability. I have also represented a client in Nebraska where the exclusive-remedy rule was limited by a court.

Big business and big insurance will not back down. They won’t let up. As I write this blog, billions of dollars are being poured into political campaigns by the Koch Industries, TD Ameritrade and scores of others to support candidates who want to reduce and eliminate workers’ benefits.

Workers, their families, and everyone else who cares about ordinary human beings must not let these wealthy interests buy elections. We must stand up and vote. We must inform ordinary human citizens that the corporate citizens are taking away our rights as fast as they can. This is a crucial election, and every election will be crucial until people stand up and convince the mega wealthy that they can’t buy elections any longer.