Author Archives: Jon Rehm

Youth Minimum-wage Law Not Only Wage Law Affecting Young Nebraskans

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Nebraska appears to be on the verge of repealing part of last year’s successful ballot measure – to raise the state minimum wage from the federal rate of $7.25 per hour to $9 per hour by 2016 – by creating a lower youth minimum wage. I agree with arguments against a youth minimum wage stated by opponents such as state Sen. Adam Morfeld. But this attack on Nebraska’s wage and hour laws concerns me for other reasons.

Many young people work in home health or as salespeople. Federal-wage law exempts home health aides and so-called outside salespeople from minimum wage and overtime laws. Nebraska law has no such exemptions, so home health aides and salespeople are covered by Nebraska’s minimum-wage law, while they are not covered by federal law. If Nebraska legislators can roll back wage rates in our wage and hour laws, it is possible that they might also create more exceptions to our minimum-wage laws.

Besides minimum-wage concerns, young people, especially students, may be working in unpaid internships that violate both state and federal minimum-wage laws. I recommend students (and employers of interns) read an excellent blog post by the U.S. Department of Labor Wage and Hour Division about when interns should be paid. Students (and their employers) should also remember that unpaid internships may violate Nebraska wage and hour laws as well.

Though the Nebraska Wage and Hour Act does not allow punitive damages like the Fair Labor Standards Act, Nebraska law does allow for attorney fees and has a criminal penalty for wage violations not found in federal law. This criminal penalty can force quick settlements from employers if the liability for unpaid wages is clear. If an employee can clearly show they are owed an amount of wages, the employer may be forced to pay a penalty under the Nebraska Wage Payment and Collection Act. This penalty is also an incentive for employers to settle wage claims when liability for unpaid wages is clear.

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, Government, Legislation and tagged , , , , .

Is Your Job Causing Asthma or Making It Worse?

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The spring allergy season that also causes asthma concerns is upon us, and this is especially evident in the Great Plains, where the wind blows dust and pollen throughout most days. 

A recent study from the Centers for Disease Control and Prevention (CDC) showed that 16 percent of American adults had asthma that was either caused or aggravated by conditions at work. According to the National Institutes of Health, workers who are regularly exposed to chemicals and dust, such as millers, bakers, woodworkers and farm workers, are most vulnerable to work-related asthma. The Asthma and Allergy Foundation of America states that adults lose 14 million work days per year because of asthma. 

In terms of Nebraska, this means that approximately 134,400 days of work are missed in Nebraska due to work-related asthma. In Iowa, that number is closer to 224,000 days of work that are missed because of work-related asthma. This is an estimate of missed days nationwide in proportion to the population of the states. 

Workers should make sure their employers are providing safety equipment that protects against respiratory injury. Employees should make sure they are carrying inhalers in the workplace if they have been prescribed them by a doctor for asthma. 

But if a worker suspects their work is causing breathing problems or making pre-existing asthma worse, they should report that as a workers’ compensation injury and seek treatment with a specialist in treating breathing conditions. Medical bills for treating asthma should be covered like any other work injury, and any lost time because of work-related asthma should entitle an employee to temporary disability for lost time and permanent disability for permanent breathing problems. 

Work-related asthma would also be a disability under the Americans with Disabilities Act (ADA) and under similar state laws. Further, an employee has protection against retaliation under most states’ laws, including Nebraska and Iowa, as well as under federal law, for reporting work conditions that cause asthma and/or from claiming workers’ compensation benefits for work-related asthma.

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 Workers' Compensation, Workplace Injury, Workplace Safety and tagged , , , , .

Here’s the Reality of Workers’ Compensation, the ADA, and Going Back to Work

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As shown by a recent post from LexisNexis Legal Newsroom, workers’ compensation insurers and employers are finally starting to understand the Americans with Disabilities Act (ADA). Hopefully the days of employers firing employees after their 12-week FMLA leave when the employee can’t come back to work “full duty” and/or “with no restrictions” are behind us. But just because most employers and workers’ compensation insurers are now complying with basic requirements, doesn’t mean that injured workers will be able to successfully defend their rights under the ADA and their ability to maintain employment.

Employers and insurers understand the importance of the “interactive process” and how it should involve the employee and the employer. But this is too simple. The process involves a doctor who may or may not know the employer’s true job restrictions. The insurer/employer can also be represented by a nurse case manager who is familiar with medical terminology, practice and might even have a pre-existing relationship with the doctor. That nurse case manager could also be in communication with an employer and have an idea of a job that the employee can be placed into.

In this situation, the employee is at a disadvantage. The employee usually doesn’t understand medical terminology or know the doctor. In addition, an employee probably won’t have a job description to present to the doctor so they will be at a disadvantage in return to work. This situation can be made worse if an employee appears to a doctor as if they don’t want to go back to work.

So what can an employee do?

1. Ask for actual copies of job descriptions. This way an employee is armed with the facts about the job. Furthermore, they can tell the doctor if the job description is accurate. Assuming the employee is credible in what they tell the doctor, they will have more basis than a nurse case manager in being able to describe the job.

Next, an employer has an obligation to engage in a “good faith interactive process.” If management decides that they won’t give out written job descriptions to injured workers who request them for the purpose of determining work restrictions, then that would be evidence of bad faith on the part of the employer.

2. If you can, pick your own doctor or surgeon. Unfortunately, some doctors are generally unwilling to give injured workers a fair break and can be way too cooperative with insurers or major employers. In Nebraska, employees can pick their own treating doctor and can pick their surgeon even if they give up their initial right to pick their doctor. Exercising doctor choice at least gives employees some control over their medical care and it makes it more likely that they will find a doctor who will be cooperative in regards to the ADA.

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, Workers' Compensation and tagged , , , , .

Why CNAs and Home Health Aides Should Care about the Fight over a Federal Regulation

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090429-A-0868C-005A U.S. District Court in Washington, D.C., recently struck down a federal regulation that would mandate that home health aides are paid the minimum wage and paid overtime under the federal Fair Labor Standards Act (FLSA). Though the decision will likely be appealed, this decision is still a bad decision for the men and women who do the hardest jobs in health care – home health aides and certified nursing assistants.

Why home health aides aren’t covered by federal wage laws

Home health aides were exempted from the FLSA 40 years ago in order to make caring for the elderly less expensive. However, companion care has become a big and very profitable business. An index of publically traded home-health-care stocks has consistently outperformed the stock market as a whole for the last 13 years. This profitably is due in part to the minimum wage and overtime exemptions for home health aides.

How the home health exception affects other jobs in the medical field

The federal government estimates that nearly 1 million are employed as home health aides, while private sources estimate that number as 2 million. Home health is also a fast-growing field of employment. Home health aides essentially have the same job duties as certified nursing assistants (CNAs). CNAs are generally covered by minimum wage and overtime laws, but workers with the same skills and same duties are exempt from those laws if they are working as home health aides. CNA wages are pushed down by home health aide wages, which are exempt from federal wage laws.

Why pay is about more than wages

A recent study of CNAs showed that nearly 60 percent of CNAs report injuries during a 12-month period. The injury rate is similar for home health aides. The study also showed that higher-paid CNAs were injured less frequently than lower-paid CNAs. The study indicated that organizational factors really drove injury rates among CNAs. In other words, in settings where CNAs are truly valued, paid fairly and trained, the injury rates are lower. But if CNAs are treated as low-wage, high-turnover cogs in a machine, then injury rates are higher. Low pay for CNAs and home health aides isn’t just an issue for employees. Low pay for home health aides and CNAs has been linked to poor patient care.

While the Obama administration has been criticized for being too aggressive in enforcing the FLSA, the U.S. Department of Labor announced that they will delay enforcement of the home health aide regulation until July 2015. This assumes courts will let the Department of Labor actually enforce the regulation. Anyone concerned about this issue should contact their members of Congress to support legislation that ends the home health aide exception. People should also contact their state legislators to support legislation that would ensure that home health aides are covered by state wage and hour laws.

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, Health, healthcare, Workers' Compensation and tagged , , , , .

Back to Downton Abbey – Why You Should Care About a Seemingly Ho-hum Supreme Court Case

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downtown abbeySo what does Downton Abbey have to do with a seemingly ho-hum recent Supreme Court case about pension benefits for union retirees? Lots.

The decision in question is the recent Supreme Court decision of M&G Polymers USA, LLC v. Tackett. In that case, the U.S. Supreme Court unanimously overturned a decision by the 6th U.S. Circuit Court of Appeals that interpreted the Labor Management Relations Act ruling that health care benefits for union retirees continue permanently, even if the collective bargaining agreement expires. In other words, even if a collective bargaining agreement ends, the company is still on the hook for health care benefits for retirees.

The Supreme Court ruled that since that understanding wasn’t explicitly spelled out in the contract, then the union retirees were out of luck. The Supreme Court relied on supposed “common law” principles to arrive at this result. Common law was developed by courts in England and transported across the Atlantic to the United States in the 17th century. It was a system that largely favored the Lord Granthams of the world. For example, there was no such thing as “workers’ compensation” or “employment law.” There was the “law of master and servant.”

If you watch Downton Abbey or know much about the history of the late 19th and early 20th centuries, the “servants” weren’t pleased with this arrangement. So starting in the 1910s, state legislatures started passing workers’ compensation statutes. In the 1930s and 1940s as part of President Franklin Roosevelt’s New Deal, Congress started passing laws like the Labor Management Relations Act and the Fair Labor Standards Act, which gave employees protections in addition to what they had under the common law. This expansion of employee rights continued with the Civil Rights Act of 1964, as well as the Americans with Disabilities Act, passed in 1990 and amended in 2008, and the Family and Medical Leave Act in 1993.

No law passed in the last 100 years that protects the rights of employees really has any basis in the common law, so when the Supreme Court starts using 18th century English law to interpret those laws, then employees should be concerned.

Lay people who follow politics may get confused by a 5-4 split. What happened there was that the four Democratic-appointed justices, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer, agreed with the outcome of the case but not the reasoning used by five Republican-appointed justices, Chief Justice John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. Of note, none of the supposed “liberal bloc” supported the decision made by the 6th Circuit Court of Appeals, which is the highest federal court for the states of Michigan, Ohio, Kentucky and Tennessee. The judges of the 6th Circuit are appointed by the president and subject to approval of the Senate, just like Supreme Court justices. It’s hard to argue that the judges of the 6th Circuit Court of Appeals are somehow out of the mainstream of legal opinion or radical bomb throwers.

Plaintiffs’ lawyers and union leaders who read this blog will sometimes lament how the blue-collar people we represent largely vote Republican, based on social issues and national security issues, even though their economic interests are aligned with the Democratic Party. But after reading M&G Polymers USA, LLC v. Tackett, can blue-collar conservatives be entirely blamed for not thinking the Democratic Party supports their economic interests? Maybe plaintiffs’ lawyers and union leaders are the real chumps for blindly supporting a national Democratic Party that seems to be indifferent to their interests and the interests of those they represent.

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, History, history of workers' compensation, Workers' Compensation and tagged , , , , , , .

What Does Supreme Court’s Warehouse Workers’ Ruling Mean?

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Last Monday, the U.S. Supreme Court ruled 9-0 that contracted warehouse workers for Amazon did not have to be paid for time spent waiting to clear through an anti-theft security screening after their shifts. Justice Clarence Thomas ruled that time spent in an after-work security screening was not integral and indispensable to the primary activity of a warehouse worker, therefore not covered under the federal Fair Labor Standards Act. So what does that mean for you?

First of all, this should mean that any worker who has to go through a security check after work will not have to be paid by their employer for the time that process takes. However other pre- and post- workday activities should still be covered under the Fair Labor Standards Act. Donning and doffing safety equipment is still compensable because such safety equipment helps an employee work safely. Call-center workers still should be paid for time spent booting up and logging into a computer and phone because a call-center employee is unable to do their job if they are not logged into their phones and computers. Employees should also consult with a lawyer about state wage and hour law as state law may be friendlier to employees.

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 , , , , .

Are You Kidding Me? Jimmy John’s Makes Sandwich Makers Sign Non-Compete Agreements

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I thought I was reading “The Onion” when I read that Jimmy John’s was forcing lowly paid sandwich makers in Illinois to sign non-compete agreements. Unfortunately, this is true, and that is tragic for Jimmy John’s employees and employees everywhere.

If there is a silver lining to this dark cloud for employees, it is that these agreements are generally not enforceable. My reading of Nebraska law leads me to believe that a non-compete agreement for a sandwich maker would not be enforceable. In Nebraska, non-compete agreements are only enforceable if 1) they are not injurious to the public and 2) protect some legitimate interest of the employer and 3) are not unduly harsh and oppressive upon the employee. Obviously these non-competes are unduly oppressive and harsh to employees, but they likely also do not protect a legitimate interest of Jimmy John’s. Employers can be protected from unfair, but not ordinary, competition. What unfair competitive advantage can an $8-per-hour sandwich maker give to another sandwich-making shop? Nebraska has struck down non-compete agreements for much more highly paid workers, like sales professionals whose livelihood depends on building relationships with customers. I cannot see how any court could equate a sandwich maker making the minimum wage with a highly-compensated software or farm-products salesperson.

But such legal reasoning is cold comfort for a low-wage worker who is stuck with one of these agreements. Such treatment of Jimmy John’s and fast-food workers in general explains efforts to unionize Jimmy John’s workers and other fast-food workers. If you are a food worker who receives one of these non-compete agreements, I would be happy to consult with you. I would also encourage you to visit jimmyjohsnworkers.org and/or fightfor15.org.

Also remember that an election is 12 days away in Nebraska, Iowa, and most of the rest of the country. Please get out and vote, and vote for candidates who support employee rights.

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.

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Did a Local Manufacturer Violate Federal Law with a Sudden Layoff?

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Employees at the Store Kraft plant in Beatrice, Neb., were stunned to find out on Monday morning that Monday would be their last day on the job. Such short notice may be against federal law and entitle the laid-off workers to back pay and benefits for up to 60 days.

Under the WARN Act (Worker Adjustment and Retraining Notification Act), employers of more than 100 employees are required, in most instances, to give workers 60 days of notice in the event of a plant closing or a mass layoff.

Press coverage of the plant closing appears to show that Store Kraft is roughly at 100 employees. If Store Kraft had more than 100 employees, then it is very possible that their former employees may have a case under the WARN Act. The closing of the Store Kraft factory is devastating for its workers and hurtful to Beatrice and the surrounding community, but former workers may have a claim against Store Kraft for the abrupt manner in which the employer shut down the plant.

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 , , , .