Author Archives: Jon Rehm

Do I Have a Wrongful Termination Claim?

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wrongful termination claimAssuming you do not have an employment contract, you can only claim wrongful termination if the firing was motivated by certain unlawful reasons. Unlawful reasons include discrimination based on sex or gender – this includes sexual harassment and pregnancy – as well as race, religion, nationality and disability. In certain places and in certain situations, sexual orientation discrimination can also be unlawful. Disability in this context will often mean any serious or chronic health condition you have. Disability discrimination can also mean that you are taking care of someone with a disability.

You also cannot be discriminated against by your employer for certain activities on the job. This is commonly referred to as retaliation. One of these activities is taking extended leave under the Family and Medical Leave Act (FMLA) for your own or for a loved one’s medical condition. Other common protected activities include opposing unlawful discrimination; filing a safety complaint; filing a workers’ compensation complaint; complaining of pay practices; or complaining about other illegal activities. If you are a government employee, you might also have some claims based on constitutional law.

Essentially, not all terminations are unlawful. But if your situation fits into the categories described above, then be sure to contact an experienced employment attorney. In addition, it is wise to ask for advice about applying for unemployment, even if there’s not a wrongful termination case.

Work Comp Approved My Medical Care; Why Am I Still Getting Billed?

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Sometimes insurance companies do the right thing in workers’ compensation claims but medical offices don’t. A prime example of this is overly aggressive billing for medical services.

Under Nebraska law, an employer may only charge a certain amount for medical care covered by workers’ compensation care. Most importantly, the injured worker should pay nothing for medical care if it is covered by workers’ compensation. In Nebraska, workers’ compensation generally pays doctors a higher rate than private insurance.

The problem is that sometimes clinics will try to collect the balance from injured workers under the assumption that workers’ compensation works like private health insurance. Injured workers who get their care paid for by workers’ comp aren’t subject to deductibles or co-pays.

Sometimes clinics just make stupid mistakes.  I recently had a client who was billed by a surgical office for the expense of the employer’s lawyer meeting with the surgeon. Today, I had a client who was being flat out doubled billed.

Even if you are getting your medical paid, it would make sense to speak with an experienced workers’ compensation attorney in a scenario when you are being overbilled for care related to workers’ compensation. The same also goes if a medical office is aggressively trying to collect an unpaid bill from you. A knowledgeable lawyer can fight an unjustified collections case and can also advise you about your workers’ compensation.

Oftentimes, financial problems related to workers’ compensation injuries stem from an employee not getting loss-of-income benefits while they are healing. I defended a collection action for a client who was forced to use his wife’s health insurance to pay medical bills for his workers’ compensation-related medical bills. Having the ability to successfully prosecute a workers’ compensation case can relieve those financial pressures in some circumstances.

Has Online Filing Added to OSHA Whistleblower Backlog?

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OSHA’s recent decision to allow employees to file whistleblower cases online has led to a large increase in filings and has added more delay to claims that were already backlogged before online filing. According to OSHA investigators, this increase in filings hasn’t been met with a proportionate increase in staff. One investigator estimated it takes over 400 days for OSHA to conclude investigating claims.

The delay created by the backlog hurts investigations for many reasons. Witnesses become unavailable, and recollections of events change. Unscrupulous employers also can use the delay to hide or destroy documents and intimidate witnesses.

Of course, employees who feel they have been retaliated against oftentimes have the option of filing a state or local fair employment agency claim on the basis of retaliation. Employees might also have the option of filing for retaliatory discharge without filing a fair-employment claim, as is oftentimes the case if they are fired for filing workers’ compensation. However, this summer the U.S. Supreme Court likely made many types of retaliation cases more difficult to win with their decision in the Nasser case. The court ruled in Nasser that employees claiming retaliation cases under federal Title VII must prove that exercising their rights under Title VII was a “but for” cause of their termination.

But under whistleblower laws under OSHA – such as the Surface Transportation Assistance Act (STAA), which protects interstate truckers, and Dodd-Frank, which protects workers in the financial services industry – an employee must only show that their report of illegal conduct was a contributing factor to their termination.

Employees with a retaliation case should consult with an experienced employment attorney to determine the best forum for any wrongful-termination case.

Recent Nebraska Supreme Court Decision Helps Injured Workers

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Injured workers want prompt resolutions of their workers’ compensation claims. A recent Nebraska Supreme Court decision allows for faster resolution of workers’ compensation claims. 

In the case of Jacobitz v. Aurora Cooperative, the employer disputed that Jacobitz was even hurt at work. The workers’ compensation court agreed to a hearing solely on the issue of whether Jacobitz was hurt at work. If the court agreed that Jacobitz was hurt at work, then the court was to schedule a trial on his entitlement to benefits. The workers’ compensation court agreed that Jacobitz was hurt at work, but the employer appealed the decision that Jacobitz was injured at work.

The Nebraska Supreme Court dismissed the appeal without getting to the substance of the employer’s appeal. The court’s reason for doing so was that allowing the employer to appeal solely on the issue of liability unfairly delayed payment of benefits to injured workers. In essence, the employer could appeal the issue of liability, and they could appeal the issue of benefits as well. Meanwhile, the employee isn’t receiving any workers’ compensation benefits during the appeals process.

Jacobitz was a good decision for Nebraska employees.

I Got Fired for Refusing to Work on Christmas. Is that Legal?

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At-will employees are usually at the mercy of their employer. This is often painfully apparent during the holidays when employees are forced to work on Christmas. But since Christmas is a religious holiday, employees can invoke federal and state anti-discrimination laws under certain circumstances in order to celebrate Christmas. Here are the two steps to avoid being fired for celebrating Christmas:

  1. Your religious belief must be bona fide.
  2. Your employer must know about your religious belief.

However, you can still get fired for not working on Christmas if your employer can show that they had an undue burden in accommodating your request for time off to celebrate Christmas. Notice and accommodation go hand-in-hand. An employee will have a difficult time trying to show religious discrimination if they tell their boss on Dec. 23 that they can’t work their scheduled shift on Christmas Eve.

Letting a boss know well ahead of time about the need for leave on Christmas or any other religious holiday is the best thing an employee can do in order to practice their religious beliefs while maintaining their employment.

What Both Sides Miss in the ‘Duck Dynasty’ Debate

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Duck DynastyComments made by “Duck Dynasty” star Phil Robertson, in an interview with GQ magazine, have set off a social media and cable news firestorm about the role of free speech in the employee-employer relationship. But neither side in the Duck Commander debate is telling the complete story. In short, while private employees do not have First Amendment protections in the workplace, Title VII provides some protections for religious belief and practice in the workplace.

Duck Commander detractors are correct to point out that the First Amendment does not apply to private employers* like A&E Networks and that employers are free to fire employees at will.* But what the largely urban, progressive and educated Duck Commander detractors largely fail to realize is that religion is a protected class under federal anti-discrimination law.

Conservative, evangelical Duck Commander supporters also fail to realize that federal anti-discrimination laws protect them as well. In the case of Ollis v. HearthStone Homes, an evangelical Christian successfully sued his employer for discrimination and retaliation for firing him in retaliation for failing to participate in “New Age” religious practices. The Ollis decision gives a good guide on what constitutes religious discrimination:

To establish a prima facie case of religious discrimination, a plaintiff must show he (1) has a bona fide religious belief that conflicts with an employment requirement, (2) informed the employer of such conflict, and (3) suffered an adverse employment action. If the plaintiff establishes these elements, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. Thereafter, the burden shifts back to the plaintiff to show the reason offered by the employer is pretextual.

Assuming that Robertson was an employee, it might be difficult to argue that his religious beliefs conflicted with an employment requirement. Even if he could make that argument, his employer could argue that how he expressed his comments about gays could be legitimate reason for termination. Finally, regardless of Robertson’s comments about gays, his comments about race relations in the South could likely provide any employer with a legitimate reason for termination.

 

*Robertson is likely not an employee of A&E Networks and likely has an a contract with A&E so Title VII is probably not applicable in this case

Contact a Workers’ Compensation Lawyer, Even if Your Medical Bills Are Being Paid: Here’s Why

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Nebraska is a state that has a “prompt payment rule” for medical expenses in workers’ compensation cases. This means that so long as your employer has sufficient knowledge that your medical care is necessary because of the injury, your bills should be paid. This is a huge plus because even a minor workers’ compensation injury can cause an employee to rack up thousands of dollars in medical bills.

In Nebraska, delay of medical payment is treated as a denial of a claim. That is why a delay in paying for medical bills from a work injury gives the employee the right to pick their own doctor for a work injury.

The issue of doctor choice brings up a couple of the hidden dangers of the prompt payment rule.  Many times, employers will promptly pay medical expenses for doctors who will oftentimes release employees before they are done healing and return employees back to work before they are ready. Employees need to be able to know their doctor-choice rights before they agree to an employer/insurer-oriented clinic or doctor – especially if that doctor is not their family doctor.

Secondly, employees can get lulled into contentment when an employer pays their medical bills. Medical benefits are one aspect of workers’ compensation benefits; the other is loss of income benefits. An employer/insurer may use their leverage with a doctor to minimize loss of income benefits. Also, when employees get into litigation, they are oftentimes confused by the fact that an employer will pay for medical benefits, but not loss of income benefits, or will deny that the injury is even work related. This is related to the prompt payment rule. Just because an employer pays medical bills, that doesn’t necessarily mean that they or a workers’ compensation judge will believe those medical bills are related to the work accident.

NEOC Awards Whistleblower Client Misclassified as Independent Contractor

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justiceI was happy to have the chance to represent Theron Chapman in his whistleblower claim against his former employer, Midwest Demolition. While the Lincoln Journal Star headline of “Man chased from job by manager with stun gun awarded back pay” is catchy, the real story here is that an employee who was fired for complaining of legitimately being misclassified as an independent contractor won some measure of justice from the Nebraska Equal Opportunity Commission.

Mr. Chapman had a legitimate grievance about being misclassified as an independent contractor. Nebraska law explicitly prohibits the type of misclassification that he questioned. In 2010, State Sen. Steve Lathrop, who authored the legislation outlawing misclassification in Nebraska, said in his bill’s statement of intent, as quoted in Truckinginfo: the web site of Heavy Duty Trucking magazine, that:

“When a contractor misclassifies an employee, the employee is ineligible for unemployment and workers’ compensation benefits, loses labor-law protections and does not receive employer-provided health insurance. Misclassification creates an unfair advantage to unscrupulous contractors who are able to outbid law-abiding employers who must take into account the payment of taxes and insurance premiums when bidding for jobs. The State’s loss in revenue negatively affects the funding of essential programs such as unemployment benefits.”

The deeper story here is that people on the margins of the workforce can sometimes vindicate their rights in the workplace. My client was hired through a job lottery at the People’s City Mission, a homeless shelter, here in Lincoln. People in his situation are vulnerable to abuse in the workplace. Not every instance of bad behavior by management is legally actionable, but that is true from the executive suite to low-wage workers like my client. But fair-employment laws can protect people who are being abused in the workplace and do sometimes provided protections to the people who need them the most.