Author Archives: Jon Rehm

Is it Illegal to Discriminate Against Me on the Job Because of My Accent?

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Contrary to popular opinion, many immigrants work in professional and white-collar jobs. The explosive growth of immigration to the United States means that more immigrants will work in white-collar jobs in the United States. Since white collar jobs often require verbal communication, immigrants employed in white-collar professions and their employers will increasingly face the question of whether it is legal to discriminate on the basis of accent. 

Most federal and state courts that have addressed the issue believe that it is illegal for employees to discriminate based on accent if that discrimination is tied to nationality. Courts have even gone so far as to state that nationality and accent are intertwined, which means that they take such discrimination seriously. However, courts understand that employers have an interest in clear verbal communication. So what steps should you take if you think you are being discriminated against because of your accent? 

  1. Apply for a promotion for which you are qualified: Discrimination is only actionable if the company takes some action against you. One so-called adverse action is a failure to promote. If you are a trusted and valued employee, a company will often give you a reason why you were not promoted. If this reason is related to your accent, you can often get a decision maker to say as much. Legally, this is considered direct evidence of discrimination.
  2. If possible, reach out to other foreign-born employees in your workplace: If other foreign-born employees are being discriminated against for the same or similar reasons, it makes sense to work with them, as it can show a pattern by the employer. Also, when employees work together to fight discrimination, they are not just protected by civil rights laws, but they are also protected under the National Labor Relations Act.
  3. If possible, contact an employment attorney in your area before you decide to take action:  Every situation is different, and laws vary from state to state. A lawyer can give you tips about how to potentially build a case, can give you advice about actions and tactics to avoid, and can advise you about any legal deadlines that might apply to your potential case.

The offices of Rehm, Bennett & Moore and Trucker Lawyers are located in Lincoln and Omaha, Nebraska. Six attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 90 years of practice representing injured workers and truck drivers in Nebraska and Iowa in state-specific workers’ compensation systems. 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 , , , , .

Will It Hurt My Workers’ Compensation Case to Get a Job?

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accommodations“Will getting a job hurt my case?”

I hear this question on a regular basis from my workers’ compensation clients. In my experience, the answer is almost always “no.” But if you do find alternate or part-time employment during your workers’ compensation case, you need to keep track of and disclose your earnings.

Why working when you are injured can help your case:

  1. Working helps your credibility with doctors and judges:
    Doctors and judges are the two most important people in your case, because the doctors drive the medical evidence and the judge weighs that evidence. Ultimately, those decisions come down to a doctor or judge’s determination of your character. A judge is going to give the benefit of the doubt to someone who is trying to help themselves. That’s also why complying with doctor’s orders and rehabilitation programs helps your credibility in court.
  2. Just because you’re working doesn’t mean that you are not significantly or even totally disabled:
    Maybe your company is bending over backward to keep you. Maybe a sibling or a parent has you working at their business. In situations like that, a court is going to understand you are earning wages beyond your real potential to earn wages. You may also be enduring tremendous amounts of pain to maintain employment. In cases like that, especially if you had a good employment record and complied with your doctor’s orders, the fact that you are working through pain could very well help your credibility.

How to hurt your case when you work:

  1. Not disclosing your wages and employment:
    This is especially true if you are working while receiving temporary disability benefits or unemployment benefits. This makes you look dishonest, and you might be committing fraud in many states. Additionally, once you are in the legal process, you normally have a duty to disclose that information to your employer/insurer anyway. Even if a judge believes that you inadvertently forgot to turn over this wage information, you are still making it more difficult for your attorney to win you benefits.
  2. Clearly working beyond your medical restrictions:
    Let’s say a doctor takes you off work as a nurse because you can’t lift more than 25 pounds and bend and twist on a regular basis, but you keep working as a CrossFit instructor, where you regularly do heavy lifting that involves bending and twisting. If you are that person, don’t call our law firm. Though employee fraud is a very small percentage of overall fraud, conduct like that would likely be workers’ compensation fraud. Again, working can help with your credibility in a workers’ compensation case, but being dishonest about that work can hurt your case.

If you have questions about specifics in your or a loved one’s workers’ compensation case, please contact an experienced workers’ compensation lawyer.

The offices of Rehm, Bennett & Moore and Trucker Lawyers are located in Lincoln and Omaha, Nebraska. Six attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 90 years of practice representing injured workers and truck drivers in Nebraska and Iowa in state-specific workers’ compensation systems. 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 Work Injury, Workers' Comp Basics, Workplace Injury and tagged , , , , .

Exoskeletons and the Workplace

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Due to Japan’s rapidly aging demographics, they are using exoskeletons to make older workers more productive in heavy-labor jobs.

“’We expect that exoskeletons, or power-assist suits, will be widely used in people’s lives in 15 years,’ said Panasonic spokesperson Mio Yamanaka, who is based in Osaka, Japan, as quoted by Tech Review.”

“The suit, which weighs just over 13 pounds and attaches to the back, thighs, and feet, allows its wearer to carry an additional 33 pounds,” according to the Business Insider article. Industries that have tested the suit in Japan include warehouse handlers and forestry workers. Another suit in testing that’s larger “could help workers carry up to 220 pounds.”

I see some upsides and downsides to this trend:

Positives:

  1. This preserves manual-labor jobs. The human brain is still more sophisticated than a computer when it comes to having the skills to perform many tasks. Robotically enhanced humans might preserve human labor.
  2. It’s potentially easier to accommodate injured and disabled employees. There might be fewer workers’ compensation payments, but employers may find it harder to fire injured workers.  Not having an exoskeleton available for injured or disabled employees could be considered discrimination.
  3. Less discrimination against older workers would occur when physical limitations are decreased.

Negatives:

  1. Using an exoskeleton opens the potential of abuse by employers. The machines may push production workers to perform their duties even faster. Employees may still have injuries or maybe even develop new work-related injuries from using exoskeletons.
  2. Are exoskeletons really safe? Who is responsible if they cause injury?

In summary, if you or a loved one have questions about current workplace trends as they apply to injured workers, please contact an experienced workers’ compensation lawyer.

The offices of Rehm, Bennett & Moore and Trucker Lawyers are located in Lincoln and Omaha, Nebraska. Six attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 90 years of practice representing injured workers and truck drivers in Nebraska and Iowa in state-specific workers’ compensation systems. 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 Workplace Injury, Workplace Safety and tagged , , , , .

Rise of Online Shopping Bodes for More Dangerous Holiday Jobs

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X2_warehouseThe business press has trumpeted the fact that online sales outpaced in-store sales over the post-Thanksgiving weekend. A less-reported fact is that more temporary holiday jobs have shifted from in-store retail sales to more warehousing and transportation jobs that are more dangerous. This is especially true in the wintertime, when delivery drivers in many parts of the country are exposed to hazards from slippery surfaces and also to cold weather. 

Adding to the risk of transportation jobs is the fact that many transportation companies attempt to define their drivers as independent contractors, which means drivers would bear the cost of work injuries. Major holiday employer FedEx recently had to pay a $228 million settlement for misclassifying their delivery drivers as independent contractors. Similar arguments have been made against Uber, who is now attempting to compete with FedEx in the delivery business.

The mere fact that you signed an agreement where you agreed to be an independent contractor doesn’t necessarily mean that you are an independent contractor, but it could affect your ability to collect some employment benefits, like workers’ compensation benefits. If you are hurt as an independent contractor, you should contact an experienced workers’ compensation lawyer in your state, as laws are state specific. If you believe you are not being paid for breaks, overtime or even being paid the minimum wage as an independent contractor, then contact an experienced employment attorney as there are both federal and state laws that protect employees who are misclassified as independent contractors.

Employee misclassification adds another layer of risk for employees who hold second jobs over the holidays or any other time of the year. True independent contractors are not eligible for workers’ compensation, but many, if not most, temporary holiday jobs would not qualify for independent-contractor status. Workers’ compensation was never designed to compensate people for pain and suffering, but in the case of those injured on lower-paid holiday or second jobs, workers’ compensation benefits may not even remotely pay you for how an injury affects your ability to earn a living. Be sure to weigh the risks of taking a holiday job or any second job.

The offices of Rehm, Bennett & Moore and Trucker Lawyers are located in Lincoln and Omaha, Nebraska. Six attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 90 years of practice representing injured workers and truck drivers in Nebraska and Iowa in state-specific workers’ compensation systems. 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, Independent Contractor, Misclassification, Safety violations, Work Injury, workplace accidents, Workplace Injury, Workplace Safety and tagged , , , .

Five Ways Employees Can Navigate the Hassle of Temporary Partial Disability

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returnToWorkReturn-to-work issues seem to involve the blind leading the blind, even in the best circumstances. Doctors, especially general practitioners, are unsure what exact work restrictions are needed for an injured employee. Employers may not always have a good idea, assuming they are acting in good faith, what the requirements for the job are as well.

This can be further complicated if an employee attempts to come back to work part time from temporary disability. Not only do you have to navigate the issues of whether the job is appropriate, but you also have to deal with how much you get paid for what is called temporary partial disability.

What is temporary partial disability?

Temporary partial disability represents two-thirds of the difference between what you are making and your pre-injury average weekly wage. Though this seems simple in theory, it can be complicated for many reasons. Here are five things that employees can do to ensure they are being paid the proper amount of temporary partial disability:

  1. Keep track of your pay stubs: Temporary partial disability is difference between your pay and your average weekly wage. So you need to know your pay in order to determine that amount. Sure employers can do this, but sometimes employers, especially if they are self-insured, have incentive to drag their feet. Also, many companies will outsource their payroll so that information may not be readily available to them. The best solution is to have that information on hand yourself. Having your pay stub will also allow you to know your pay period, which is also important.
  2. Keep track of your hours on daily basis and/or get a copy of time card: Temporary disability is usually paid weekly. Many employers will pay every other week. The pay periods between your paycheck and your disability check might also vary. Sometimes checks will get delayed because an insurance company legitimately has to investigate what benefits have to be paid for one week. You can simplify this for them by providing your time card. The U.S. Department of Labor has a good app for this that you might want to use that tracks hours worked.
  3. If your job is too hard to do physically, make a doctor’s appointment right away to see if you can get your restrictions changed: Delaying a visit to the doctor may not only damage your health; it can also cost you money. An employer can attempt to deny and delay payment between the time where you stopped working at a “light duty” job and when a doctor took you off work and you start receiving temporary total disability again. You may not be able to recover this money, short of going to court, but you do have some control over keeping these gap periods as short as possible.
  4. Turn in your time cards and time sheets to your workers’ compensation attorney or insurer: Don’t assume that your employer is turning over your hours to their workers’ compensation insurer. Be sure that you (or your lawyer) are turning in that information to ensure prompt and full payment.
  5. Make sure that you know your average weekly wage: Workers’ compensation benefits are generally some percentage of your average pay over a time period. Employers will often turn over this information to their workers’ compensation insurer for them to determine how much you should be paid. If you think you are getting shorted, ask the insurer for the basis of their calculations and run it by an experienced workers’ compensation lawyer in your state or the state where your claim has been filed.

The offices of Rehm, Bennett & Moore and Trucker Lawyers are located in Lincoln and Omaha, Nebraska. Six attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 90 years of practice representing injured workers and truck drivers in Nebraska and Iowa in state-specific workers’ compensation systems. 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, employment law, Health, Injury Reporting, social security disability and tagged , , , .

States with Opt-Out Workers’ Comp System are Strict on Injured Workers

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Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

Today’s post was written by guest author Hayes Jernigan, from The Jernigan Law Firm in North Carolina. In 2015, ProPublica and NPR have done a great service to the public by making in-depth reports on workers’ compensation systems in many states. Their most recent focus was looking at the opt out systems implemented Texas and Oklahoma. These similar systems essentially strip workers of the protections that workers’ compensation gives, stacking the deck dramatically toward employers and their insurance companies.

Fortunately, Nebraska is not an opt out state yet. But many Nebraska employers, especially those who are self-insured for the purposes of workers’ compensation, have adopted many tactics from opt out states. I think the most prevalent tactic is hoodwinking employees into filing for short- or long-term disability when an injury should be covered by workers’ compensation. Employees often unknowingly agree to this in situations where the work duties aggravated an old injury or pre-existing condition or if there is some minor delay or defect in reporting the injury. If you sign up for private disability insurance, you are often asked to deny that your disability is work related. That can doom any possible workers’ compensation claim in the future. If you are being asked to sign up for long-term or short-term disability for a medical condition that may have been caused by work injury, contact a workers’ compensation attorney.

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

This morning we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.

 

To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.

The offices of Rehm, Bennett & Moore and Trucker Lawyers are located in Lincoln and Omaha, Nebraska. Six attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 90 years of practice representing injured workers and truck drivers in Nebraska and Iowa in state-specific workers’ compensation systems. 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, Workers' Compensation and tagged , , , .

Insensitive? Yes. Crabby? Yes. Illegal Discrimination? Probably Not.

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Advertisement from the McCook, Nebraska, newspaper via Michael Schwanke’s Facebook page

KWCH (Wichita, Kansas) television reporter Michael Schwanke posted a help-wanted ad from a McCook, Nebraska, auto-glass shop on his Facebook page that has gone viral on social media and brings up some basic truths about employment law. Here is the meme:

The overarching theme here is that regular and reliable attendance and a good attitude are essential job functions for this particular job, as they are for most jobs. Do some of these requirements seem unlawful? Maybe on their face, but they probably aren’t when you do the analysis. Here are few that might raise red flags and why they probably aren’t illegal.

Have no baby sitter every day” Yes, it is illegal to discriminate on the basis of being a parent. However, most jobs require reliable and regular attendance. Sure, problems with child care can be reasonably expected, but if it becomes a pattern and it disrupts work, then it is a legitimate reason for termination.

“Have court often” There is a move to limit the use of criminal background checks in order to help ex-felons get hired, so maybe this looks bad. But again, “have court often” means that you are currently involved with the court system. If current legal issues keep you away from work too often, that could be a reason for termination. I believe that criminal background checks in employment often disproportionately affect minorities. However, barring any expression of animus against a particular race or nationality, the desire to not have your employees miss work often because of court appearances is a legitimate concern of a business owner.

“Oversleep” Sometimes medical conditions and the side effects of medications can make it difficult to wake up. Assuming your employer is covered by disability-discrimination laws, a situation like that would be covered. But again, if your job actually requires you to be present and working at a certain time and you can’t reliably meet that requirement, then your employer has a reason to fire you.

A review of the comments on the Facebook posting showed that most of the commenters were sympathetic with the employer. Regardless of what I think about those comments as an employee advocate, people with those types of attitudes and feelings are going to be the ultimate deciders of whether an employer wrongfully terminated or otherwise violated the rights of a client of mine. So if you are terminated for a reason you think was wrong or otherwise mistreated by an employer, make sure that you did your best to fulfill your duties as an employee – especially in regards to attendance.

The offices of Rehm, Bennett & Moore and Trucker Lawyers are located in Lincoln and Omaha, Nebraska. Six attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 90 years of practice representing injured workers and truck drivers in Nebraska and Iowa in state-specific workers’ compensation systems. 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, employment law, Harassment, Wrongful Termination and tagged , , , , .

Why Social-Media Hoaxes Hurt Consumers and Employees

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Doubtless most of you have seen a hoax posting on Facebook claiming Facebook will charge people $5.99 to maintain their privacy settings unless they cut and paste a legal disclaimer on their status. Here is why this hoax is ridiculous on its face and how hoaxes like this undercut the cause of people who have legitimate grievances against corporate wrongdoing. 

One reason why this hoax is ridiculous: The Rome Statute

The Facebook hoax alleges Facebook is violating the “Rome Statute.” This is funny. The Rome Statute is part of the treaty establishing the International Criminal Court (ICC). The ICC was established to prosecute war criminals and those who commit genocide. A commercial dispute with a social-media company wouldn’t fall under the jurisdiction of the ICC. The United States has never signed the treaty agreeing to be subject to the ICC, so American courts couldn’t hear a case under “The Rome Statute” even if Facebook was violating said statute.

Why hoaxes hurt consumers with legitimate grievances against corporations

The McDonald’s coffee case is ingrained into popular culture and is used an anecdote against those who file frivolous lawsuits and the supposedly greedy trial lawyers who represent them. The details of that case were exaggerated by those who seek to limit the rights of consumers. In fact many stories about crazy lawsuits are almost outright fabrications and hoaxes. These hoaxes are often shared via social media, just like the latest Facebook hoax.

Media coverage of the latest Facebook hoax is framed as a rational, benevolent technology company responding to crazies. But there are times when people have legitimate complaints against technology companies and may seek to address those complaints in court. Amazon’s mistreatment of white-collar professionals and its blue-collar warehouse workers are two examples. Like any other major corporations, technology corporations seek to use legal means such as arbitration clauses and immunity clauses to evade responsibility for their mistreatment of employees and consumers.

One of the main advocate groups against immunity and forced-arbitration clauses are trial lawyers through various trial-lawyers organizations like the American Association for Justice and their state-level counterparts. Believing and spreading hoaxes about Facebook privacy settings or crazy lawsuits serves the interests of those who would seek to prevent everyday people for addressing legitimate injuries and grievances in court.

The offices of Rehm, Bennett & Moore and Trucker Lawyers are located in Lincoln and Omaha, Nebraska. Six attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 90 years of practice representing injured workers and truck drivers in Nebraska and Iowa in state-specific workers’ compensation systems. 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, Internet and tagged , , , , .