Disability Rights Take Center Stage at Democratic Convention

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Demi Lovato at the DNCFormer Sen.Tom Harkin, D-Iowa, called for the elimination of the subminimum wage for certain disabled workers Tuesday afternoon at the Democratic National Convention. Harkin’s remarks followed two speeches about coping with disabilities on Monday night by disability advocate Anastasia Somoza and recording artist Demi Lovato as Democrats chose to highlight the 26th anniversary of the Americans with Disability Act.

The ADA isn’t normally a hot topic of discussion during political campaigns, but that law, state disability discrimination laws and other related laws will surely be affected by the fall’s federal and state elections. The presidential race will garner the most media attention. The presidential race is important because agencies like the U.S. Department of Labor and commissions like the Equal Employment Opportunity Commission will affect how the ADA is interpreted and enforced. Federal judicial appointments also impact how the ADA and parallel state laws are interpreted.

But disability discrimination laws are also affected by congressional and state races. Here are at four points to keep in mind when thinking about disability discrimination laws during this campaign season:

1. Disability rights have traditionally been a bipartisan issue. Both the Americans with Disabilities Act and the ADA Amendments Act of 2008 were passed by a Democratic Congress and signed by Republican presidents. A reader could assume that because of toxic partisanship that little progress will be made on disability rights, but that you could also infer that disability rights are so important that they could transcend partisanship even in a toxic political environment. This more optimistic view is bolstered by a study done by the Census Bureau, showing one in five Americans has a disability, so there is strong potential support for laws that help that the disabled.

2. Disability discrimination laws are a budget issue. In his speech, Sen. Harkin pointed out that 70 percent of disabled Americans are not working.Part of the reason that Republicans support disability anti-discrimination laws is that they help people maintain employment. Furthermore, the public accommodation sections of the ADA allow for disabled people to access employment through accessing transportation. The expansion of the Social Security Disability Insurance program has been a controversial issue. This increase in SSDI applications has partially been driven by the decline of workers’ compensation protections (see below). However, the purpose of the ADA was undercut in the 1990s and 2000s by the federal judiciary, which necessitated the ADAAA of 2008. It would be reasonable to assume that this misinterpretation of the ADA also helped drive the increase of SSDI applications.

3. Disability discrimination laws impact workers’ compensation laws. The Labor Department has indicated that 80 percent of the costs of work injuries are born either by government programs, private insurance or by taxpayers. In part, this is the result of a bipartisan and sustained attack on workers’ compensation laws in many state legislatures. One benefit that is routinely stripped or attacked is vocational rehabilitation, which allows workers to be retrained if they are unable to do their jobs.

In many workers’ compensation cases, a worker’s injury will give protections to that person under the ADA. This often means state workers’ compensation courts can decide questions of whether an employer could accommodate an injury and/or what duty the employer would have to reassign or retrain an injured worker who would be covered under the ADA. Recently, the 7th Circuit Court of Appeals held that employers have an affirmative duty to reassign disabled workers. It’s still an open question whether that law would obligate an employer to reassign an injured employee under a vocational rehabilitation program. But seeing that the ADA and workers’ compensation statutes have the same general beneficial purpose of allowing disabled people to maintain employment, such case law could be persuasive.

4. The ADA may affect state disability discrimination laws. States have their own laws prohibiting disability discrimination. States like Nebraska have laws that are more expansive than the ADA when it comes to pregnancy, but provide fewer protections to disabled workers in general. In Marshall v. Eyecare Specialties, the Nebraska Supreme Court held that since Nebraska did not amend its disability discrimination statute like the ADA was amended in 2008, that Nebraska courts should be applying pre-2008 decisions interpreting the ADA to Nebraska’s anti-discrimination laws. State courts generally look to how federal courts interpret discrimination laws when they interpret state fair-employment laws, so federal elections can affect how state laws are interpreted. But state legislatures can enact laws that offer more protections than federal laws. This is the case when it comes to extending fair employment protections to the LGBT community and is increasingly true as more states are starting to view pregnancy like a disability that needs to be accommodated.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Disability, discrimination, employment law and tagged , , , , , , .

Can Ride-Hailing Be Done Right in Rural America?

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Lincoln-based startup Liberty has announced that it has partnered with Panhandle Trails in rural western Nebraska for a ride-hailing app similar to Uber or Lyft to supplement public transportation options. This could be a positive development for injured workers in rural areas, as long as Liberty protects the rights of its potential drivers.

It is fairly well known that disability rates are higher in the rural United States than in urban areas. This is often attributed to physical nature of rural jobs and the older rural population. However, transportation costs are another factor in these higher rates of disability. The cost of transportation from a relatively isolated rural area can be too high to justify taking a job. This concern is frequently an issue in workers’ compensation litigation in Nebraska. If Liberty can make it easier for injured rural residents to find employment, I wish for its success.

But the problem with ride-hailing apps is that companies want to deem their drivers to be independent contractors rather than employees. Driving jobs are relatively dangerous, and the costs of those work injuries will be shifted onto taxpayers and the drivers rather than workers’ compensation. However, innovation need not mean that workers go without the protections of workers’ compensation. Debbie Berkowitz with the National Employment Law Project points to the example of the Black Car Fund where Uber drivers in New York have created a workers’ compensation plan.

Liberty states that they want to comply with their legal obligations, which is encouraging. But when Uber CEO, Travis Kalanick, calls Uber drivers the “other dude in the car” and wants to have driverless cars so he can get rid of Uber drivers altogether, workers and their lawyers have good reason to be skeptical of the sharing economy. That’s part of the reason that advocates for employees are fighting legislative efforts to broadly exempt sharing-economy employees from workers’ compensation and fair-employment laws. Other advantages of having drivers classified as employees means that states will not miss out on tax revenue. Holding the status of an independent contractor also increases paperwork and the risks of not complying with tax laws for a driver.

Aside from the issues related to workplace law, I would hope that expanding ride-hailing apps to rural America won’t be used as an excuse to stop funding rural public transportation. But overall, ride-hailing will be a net positive for rural areas, as long as it is done in a way that protects the rights of drivers.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Workers’ Compensation Advocate David DePaolo Will be Missed

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David DePaolo

David DePaolo

David DePaolo, founder of WorkCompCentral, recently passed away. He was one of the most authentic individuals in the workers’ compensation industry, who often advocated for the injured worker in his blog posts.

Mr. DePaolo was an intellect, visionary and bridge to all sides of the table in the workers’ compensation arena. It is people like him that the workers’ compensation systems around the country need in order to make things fair, reasonable and just for all.

Thoughts go to his family and loved ones.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Lawyers, Workers' Compensation and tagged , .

Can I Collect Unemployment and Workers’ Compensation Benefits at the Same Time?

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In Nebraska, an injured worker who is laid off, fired or leaves a job for good cause can collect unemployment benefits and still receive Temporary Partial Disability (TPD) benefits and Permanent Partial Disability (PPD) benefits from the workers’ compensation insurance company. The Nebraska Labor Department unemployment law does not allow a worker to receive unemployment during the same week the person is paid Temporary Total Disability (TTD) workers’ compensation payments.

To receive unemployment benefits, the injured worker must be ready, willing and able to work.  As long as injured worker is ready, willing and able to work within one’s own restrictions, that worker can receive unemployment benefits during the same week that they are entitled to TPD and PPD benefits. 

If a person is totally unable to work and getting TTD benefits, that person cannot receive unemployment benefits since they, by definition, are not ready, willing and able to work.

Under the workers’ compensation laws, it is also important to remember that compensation benefits cannot be offset with what is paid under the unemployment benefits. For guidance, please refer to Nebraska Statute 48-130 that supports this rule of law.

If you have been laid off or terminated, you are still entitled to workers’ compensation benefits in the above situations.

If you have any questions, call us for a free consultation.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Workers' Compensation and tagged , , , , , , .

Nebraska Employers Should Be Required to Post Information about Workers’ Compensation Benefits

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hanging-300x300The federal government requires that employers post summaries of rights under laws like the Fair Labor Standards Act (FLSA), the Occupational Safety and Health Act (OSH) and anti-discrimination laws like Title VII at their worksites. Most states, including Nebraska, have similar requirements. But Nebraska is among a minority of states that does not require employers to post notices about an employee’s rights under our state’s workers’ compensation act. This lawyer believes that this practice needs to change in Nebraska.

My informal inspection of worksites in Nebraska has shown me that when anything is posted about workers’ compensation, it is usually a poster about treating with an occupational medicine clinic if a person is hurt at work. The problem is that if you are hurt on the job in Nebraska, you can pick your own doctor. If an employee doesn’t exercise the right to pick their own doctor, they are taking the risk of undercutting their workers’ compensation claim.

Illinois has a good poster that explains an injured employee’s rights and responsibilities under their workers’ compensation act. I particularly like the Illinois poster because it tells employees that 1) they have some right to pick their own doctor and 2) they can’t be discriminated against for filing a claim. To me, the Illinois poster reads a lot of what an attorney like me would tell a prospective client who called with a work injury claim.

But not all posters are created equal. I think Kansas provides an example of a poster that doesn’t really help employees. Though the poster is bilingual, it doesn’t really tell employees anything about their rights and responsibilities besides what they need to do to file a report of injury. The poster also encourages workers to call their employer’s workers’ compensation insurer or claims administrator for help. This is problematic, because employees and employers don’t always have the same interests in a workers’ compensation claim.

My view is that readily available, accurate and unbiased information is good for injured employees to protect their rights under any state’s workers’ compensation act. I think posters like the Illinois poster meet these qualifications. Of course, detractors might say that employees can readily find information on the internet, so posters are a relic of the 20th century.

In response, I would say that information off the internet isn’t always reliable. Part of the reason has to do with how search engines work. Marketers and lawyers try to game the system so when an injured worker is looking for a lawyer, those firms always show up in searches. Frankly, that’s part of the reason I write blog posts like the one you are reading now. Even though I try my best to explain the law accurately, I have a slant toward representing employees, so I can’t claim to be unbiased.

But a good poster or summary of rights is about as close to unbiased as you can get. Employers also have some fear of displaying unbiased information about workplace rights in the workplace. Some employers fought a poster from the National Labor Relations Board (NLRB) informing employees about their right to form a union.

Knowledge is power, which is why I believe all Nebraska employees should have complete, unbiased and clear information about their rights under the Nebraska Workers’ Compensation Act readily available in their workplace.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law and tagged , , , , , , .

Nebraska Convenience Store Clerks Need More Protection from Violence

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Lincoln residents awoke to find out that a convenience store clerk was killed early on Thursday morning at a store in northwest Lincoln. Unfortunately, this type of violence is not uncommon in Lincoln, Omaharural Nebraska or anywhere else in the United States.

While the federal government has long recognized the problem of violence against convenience store clerks working overnight shifts, it has been left to the states and even cities like Milwaukee and Irving, Texas, to write laws and regulations to protect convenience store clerks from violence.

The Indiana Department of Labor did a comprehensive study of measures taken by other states and cities on how they protect convenience store clerks from violence.  Common practices included bulletproof glass and cages to protect clerks in high-risk areas, security cameras, clear views of cash registers, and having at least two clerks on dangerous overnight shifts. Barriers around cash registers in particular would be crucial in high-risk stores that are robbed regularly because robbers will often jump behind unprotected counters.

Though the city of Omaha has done some proactive policing to protect convenience stores in the recent past, neither Omaha, Lincoln nor the state of Nebraska has any legislation, regulations or ordinances in place to protect convenience store clerks from violence. I would encourage Nebraska’s state senators and city council members in Omaha, Lincoln and other Nebraska cities to put laws in place to protect convenience store workers. If you do not know who your state senator is, you can look that up here. Omaha residents can click here to find out how to contact their city council member, and Lincoln residents can click here to find out how to contact their city council member. Nebraska has legislative elections this fall, and Lincoln and Omaha have city elections next spring. I would urge voters in these races to pay attention to which candidates have a good record and ideas about workplace safety and which candidates value profits over safety.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Government, Legislation and tagged , , , , , .

I Can’t Do My Old Job, So I Qualify for Disability, Right?

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dib1It’s not uncommon for workers to expect to qualify for disability when they are unable to work in a job that they have held for years. The question becomes does that mean they are disabled under Social Security Administration rules? As in most cases in dealing with the law, the answer is maybe!

For workers under the age of 50, applicants must prove that they are also unable to obtain any work in the general economy, even if they can’t do their typical jobs. This includes unskilled work, and the SSA makes no distinction for what type of pay cut a worker must accept to remain gainfully employed. For instance, let’s assume a worker was earning $20 an hour as an electrician, but could no longer handle the rigors of that employment. If that person can do a minimum-wage job full time or at the level of substantial gainful employment as set by the SSA, then a person is not considered disabled under the SSA rules. Many people are surprised that the SSA would require this. Even if jobs don’t exist within the current labor market, the SSA would require a worker to move herself to a larger market to continue to be employed.

For individuals over the age of 50, the primary question is did they acquire skills from prior employment that would enable them to transition into other employment areas. If those skills would allow the worker to transition to alternate employment, then they are not considered disabled. If those skills are too specialized and don’t easily transition to alternate employment, the worker may very may well be disabled, according to SSA rules.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Disability, employment law, U.S. Department of Labor, Work Injury, Workers' Compensation, Workplace Injury and tagged , , .

Summer Jobs for Teens: Be Aware

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summer jobAs summer has hit in full force, many teens are excited to have their first real jobs. Unfortunately, some will be hurt, possibly seriously. Young workers have a higher rate of getting hurt on the job than older adults. Teens new to the workforce feel that they have to say yes to every task they’re assigned. Often, they just aren’t trained to do what they have been asked to do.

Teens’ parents should make sure young workers get the training they need but also be aware and know their rights, especially for those teens who have entered the workforce for the first time or have taken on new responsibilities as they have gotten older. Parents and teens should always ask questions, especially when they’re concerned for safety.

A common theme for parents of kids who have been injured is to find out what your child has been assigned to do, and sit down with your child and find out if there are dangers involved. Ask your teen about the equipment used on the job and whether he or she has been asked to do anything unsafe. Tell your children that no job is worth their life.

All workers have a right to appropriate training and can refuse work assignments that are unsafe.

In Nebraska …

Federal hour restrictions for children 14 and 15 years old are: not over 3 hours on a school day; not over 18 hours in a school week; not over 8 hours on a non-school day; not over 40 hours in a non-school week; and not before 7 a.m. nor after 7 p.m. (9 p.m. from June 1 through Labor Day). For more federal regulations, click here.

Children under 16 years old may not be employed in any work that is dangerous to life or limb, or in which the child’s health may be injured or their morals depraved.

The law allows 14- and 15-year-olds to perform tasks such as office work, cashiering and stocking shelves, but they can’t cook, bake or use power equipment.

Youth ages 16 and 17 may do more at work, but there are still restrictions. They can’t operate or work around heavy, moving equipment. They’re also not allowed to use equipment like meat slicers or meat grinders.

Employers must have a minor work permit endorsement on their business license to legally hire teens.

The Department of Labor may issue a special permit to allow the employment of 14- and 15-year-old children before 6 a.m. or after 10 p.m. provided there is no school scheduled these days and after an inspection of the working conditions at the business location. Special permits may be issued for up to 90 days and may be renewed.

Be excited for your children as they enter young adulthood, but know of the dangers that can be presented, and do not fear asking tough questions and researching your child’s employment tasks.  Their life and limb may depend on it.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Safety Rules, Workers' Compensation, Workplace Injury, Workplace Safety and tagged , , .