Author Archives: Rod Rehm

Increase in Wage Theft Claims

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

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

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

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

Offices Closed for Labor Day on Friday, Monday

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Labor Day

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

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

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

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

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

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

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

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

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

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

Attorney Brody Ockander Presents at Translators’ Conference

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Attorney Brody Ockander

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

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

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

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

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

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

Why Your Vote Matters to Workers

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

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

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

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

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

“Just Get Off Your @ss!”

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Today’s post comes from guest author Jay Causey, from Causey Law Firm in Seattle.

He addresses a topic that is a struggle for folks in many occupations, whether they think about it or not: sitting. This blog post struck me because in addition to the workers Mr. Causey writes about below, there is another group of people who don’t have a whole lot of choice when it comes to taking breaks: truck drivers who sit just as long, if not longer, as many office workers in a day. Although Mr. Causey takes a slightly lighter approach to the topic, it should be of serious long-term concern and consideration. Because many just don’t have the luxury of taking many or frequent breaks.

So how can business owners and employees work together to make sure workers are as healthy as possible at their jobs (and also can help keep insurance costs down)? Now that’s a good question that demands not only thought but also action.

Here’s another “helpful hint” about your own health, for attorneys and clients who may be tuning in to our blog. Nothing here directly related to workers’ compensation, except to the extent that overall good health can ward off injury and illness.

A Kansas State University study in 2013 concluded the people who sit for four hours or more each day are at a substantially greater risk for developing cancer, diabetes and heart disease. And the risk for degenerative disease continues to increase at a consistent rate for six hours, eight hours, and more, of daily sitting.

The further finding of the study was that the increased risk of disease was not correlated with high or low body mass index, meaning that outside factors, such as poor eating and other negative lifestyle habits are not nearly as significant as the risk factor of just sitting.

A report from Northwestern University earlier this year found that, over age 60, every additional hour spent sitting doubles the risk of becoming disabled.  And, somewhat disappointingly, additional exercise has no impact on the disability risk. Australian researchers recently found that people whose job or other circumstances require prolonged sitting, but who just regularly stood up and moved around frequently, were better off than sitters who did 30 minutes of exercise each day.

None of the foregoing is intended to diminish the importance of regular exercise in our daily lives, but the lesson is: don’t stay chained to your desk and computer. Stand up and walk around when you’re on the phone, do laps around the office, walk to a coworker’s office instead of emailing – – do whatever it takes to get out of the sitting position as often as possible.

Your author manages his law firm mostly on his feet. After reading about the issue with sitting, he stood and walked, without sitting, for four hours at a firm event last week. (He’s now training himself to stand — and rock back and forth on his feet– for long periods when watching TV at home.  Houseguests will be fully advised.)

Ladder Accidents on the Rise

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Today’s post comes from guest author Kristina Brown Thompson from The Jernigan Law Firm in North Carolina.

What kinds of tools do you have at home that you could use some training for or may not actually know how to use but use anyway?

The United States definitely has a do-it-yourself culture. There’s even an acronym for it: DIY. However, just because a person can do it themselves doesn’t mean it’s a good or safe idea. Sometimes it’s easier and safer to hire someone who’s trained for a home-improvement or maintenance project. After all, it’s their job to complete a project safely.

If you do choose to do-it-yourself, take your safety focus and training home with you. As is mentioned in the article below, make sure you have the equipment, skills and training to do the job safely and correctly.

When my husband and I purchased our home, we immediately bought a forty-foot ladder because obviously we would be cleaning our own gutters and needed the biggest ladder possible to reach the roof. Our first attempt to use the ladder was miserable. We could barely lift the ladder. After a few pathetic attempts to use the ladder, we realized this was a stupid idea and outsourced the job to professionals. Looking back now, it was crazy to even consider using the ladder given the sloped terrain of our yard and given the height of the home. 

According to the American Journal of Preventive Medicine, ladder accidents are on the rise in the United States. From 1990 to 2005, reported ladder accidents increased fifty percent (50%). That’s over two million people, or 136,000 people a year, treated for injuries sustained while on a ladder. Despite the risk of using a ladder, it seems that many still do not follow common safety precautions. The four main problems are: (1) selecting the wrong type of ladder, (2) using old or damaged ladders, (3) incorrect use of ladders, and (4) incorrect placement of ladders.

In my situation, we were likely using the wrong ladder, incorrectly, and certainly did not have it correctly placed. We’re lucky we didn’t end up in the ER. Ladders need to be treated like any dangerous tool. OSHA recommends significant training before allowing employees to use ladders. According to the Bureau of Labor Statistics, fifty percent (50%) of all ladder-related accidents were due to individuals carrying items as they climbed.  To avoid a potentially life-changing injury, encourage your friends and family to practice ladder safety. Avoid using a ladder alone, and always make sure you are using the correct ladder and have it set up properly.

 

Mapping the lives and deaths of workers: An emerging way to tell the story of occupational health and safety

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Today’s post was shared by Gelman on Workplace Injuries and comes from scienceblogs.com

You can’t get more of a big-picture perspective on a problem than by using a map of the globe. I also think being able to quantify a tragic problem like “occupational death, illness or disaster” makes it more real to more people, in addition to those who experience it, or work with it every day, like employees of the firm do.

The Global Worker Watch project and the Center for Construction Research and Training’s Fatality Map leads to more attention to these tragedies, according to a research analyst at the Center for Construction Research and Training.

“‘(The maps) help bring life to the data instead of just looking at the numbers,’ West told me. ‘The visual aspect and the ability to interact help draw some attention to the problem,’” said Gavin West, the research analyst.

I know the map has motivated me to consider some future blog posts using some of the raw data, and I encourage you to read and explore the information yourself to both honor those who were killed or hurt at work and also obtain information about workplace conditions both close to home and at various spots on the globe.

When Bethany Boggess first debuted her online mapping project, she didn’t expect it to attract so much attention. But within just six months of its launch, people from all over the world are sending in reports and helping her build a dynamic picture of the lives and deaths of workers.

The project is called the Global Worker Watch and it’s quite literally a living map of worker fatalities and catastrophes from around the globe. When you go to the site, you’ll see a world map speckled with blue dots, each representing a reported occupational death, illness or disaster. Here are just a few I randomly clicked on: In March in Pakistan, four workers died and 18 were injured when a gas cylinder exploded at a gas company. Also in March in Gujarat, India, two workers died of silicosis, an occupational disease caused by the inhalation of silica dust. Three workers have died in the mines of Coahuila, Mexico, since January. In February, a worker at an Iron County mine site in Utah died after getting trapped on a conveyer belt. Just a few days ago, a worker in the United Kingdom died after falling from an electricity tower. And in May, police in Cambodia opened fire during a labor protest, killing four people.

“Obviously, I’m only capturing the tip of the iceberg,” said Boggess, a 26-year-old epidemiology student at the University of Texas School of Public Health in Austin. “But if I’m just one person and I can do this in six…

[Click here to see the rest of this post]

Truckers Fired Over Workers’ Comp Claim: What to Do Next

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Truck drivers have a remedy if fired for making a workers’ compensation claim.

A recent award of over $100,000 to a truck driver who was fired for making a workers’ compensation claim illustrated the protection drivers have under the Surface Transportation Assistance Act (STAA). New Prime of Springfield, Mo., had to pay the former employee lost wages, compensatory and punitive damages. “The company must also expunge the complainant’s employment and DAC Report records of any reference to his unlawful termination,” according to the article above. 

The Occupational Safety and Health Administration (OSHA), which is often criticized for a variety of reasons, enforced anti-retaliation laws that protect truck drivers who are unfairly punished for taking steps to protect their health and financial welfare. These laws can also be enforced through lawsuits as an alternative to the OSHA administrative process. 

Truck drivers need to be aware of this protection. Truck drivers also need to know that OSHA and the Federal Motor Carrier Safety Administration (FMCSA) have just announced an agreement to strengthen protections for transportation workers from coercion and retaliation.   

The industry publication FleetOwner gives more details about how OSHA and the FMCSA interact with the STAA in this article.   

Here is one helpful quote from the FleetOwner article:

“If OSHA finds that a complaint is valid, it can order the employer to reinstate the worker; pay back pay, interest and compensatory damages; pay punitive damages up to $250,000 where warranted; and/or take other remedial actions.”

In addition, “action by one agency didn’t preclude action by another in the same situation” when it comes to the STAA.

“OSHA’s mandate is protecting workers, while FMCSA’s mandate is safety, (an FMCSA document) said. And FMCSA can take action against a carrier or other entity but, unlike OSHA, it can’t compensate a driver. So a driver filing a complaint with FMCSA about coercion might be able to file a whistleblower protection complaint with OSHA and vice versa, FMCSA said.”

The recent award and very recent press release from OSHA are great news for truckers and their families. The laws that protect you work. There is an apparently serious effort to make them work better. It will now be easier to protect your health and welfare if you are injured on the job.