Category Archives: Court

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.

Former President of Chemical Company Sentenced for Federal Crimes Related to Employee Deaths

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Today’s post was shared by Gelman on Workplace Injuries and comes from ehstoday.com. Mr. Jon Gelman is a respected colleague who focuses on workers’ compensation in New Jersey.

As the post points out, it is unusual, but not unheard of, for an employer to be charged and sentenced for Occupational Safety and Health Act violations. In fact, in 2012, I wrote about a situation that happened at a Nebraska grain elevator that caused a worker’s death and resulted in a misdemeanor charge, including a $100,000 fine and 2 years of probation for the employer.

The article below is important for a number of reasons. First, two truck drivers, Joey Sutter and Charles Sittig, died as a result of chemical exposure to hydrogen sulfide through their work. Next, the company’s former president, Matthew Lawrence Bowman, was sentenced to serve 12 months in federal prison and also fined $5,000, according to the article. As president of his company, Port Arthur Chemical and Environmental Services LLC (PACES) of Port Arthur, Texas, Bowman even directed some of the violations. And these actions were “criminally negligent,” according to John M. Bales, U.S. attorney for the Eastern District of Texas.

Although no amount of prison time or fines can bring the drivers back to their loved ones, it is good to see someone being held at least a little bit accountable for the dangers of this company’s practices.

Matthew Lawrence Bowman, the former president of Port Arthur Chemical and Environmental Services LLC (PACES) finally had his (sentencing) day in court. Bowman pleaded guilty on May 9 to violating the Occupational Safety and Health Act (OSH Act). It is rare for individuals to be prosecuted and sentenced to violations of the OSH Act.Bowman admitted to not properly protecting PACES employees from exposure to hydrogen sulfide, a poisonous gas resulting in the death of truck driver Joey Sutter on Dec. 18, 2008. In addition, Bowman admitted to directing employees to falsify transportation documents to conceal that the wastewater was coming from PACES after a disposal facility put a moratorium on all wastewater shipments from PACES after received loads containing hydrogen sulfide. He was sentenced to serve 12 months in federal prison on Oct. 28 by U.S. District Judge Marcia Crone. Bowman was also ordered to pay fines in the amount of $5,000.

Acting Assistant Attorney General Robert G. Dreher called the sentence “a just punishment” for Bowman’s actions, which placed workers “at unacceptable risk and had fatal consequences.”

“The Justice Department and the U.S. Attorney’s Offices will continue to work with our law enforcement partners to vigorously investigate and prosecute those who violate the laws enacted to ensure the safety of workers handling hazardous materials and to prevent the kind of tragedies that…

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Workers’ Comp System Not Exclusive for Neb. Case

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Lind v. Benes Heating and Air Conditioning, Inc.

Firm founder Rod Rehm won a major victory for workplace safety in Nebraska yesterday. The longstanding exclusive remedy rule for work-related injury and death cases was limited.

Lancaster County District Court Judge Steven Burns issued a ruling allowing the parents of Neil Cary, a young man killed in a workplace accident outside of Lincoln, to let a jury determine whether the negligence of their son’s employer caused his death. To a non-lawyer, this decision may not sound like news, but this ruling is big news. Historically, the exclusive remedy for injured workers and their families is to sue for limited damages through the separate workers’ compensation court system. So until this ruling, workers’ heirs couldn’t sue a negligent employer for full damages from a work-related death.

Cary’s parents didn’t receive any workers’ compensation benefits for the loss of their son. Workers’ compensation death benefits only pay money for loss of income to survivors who were dependents of the worker. If a parent is not financially dependent on the child, which is usually the case, a parent is not entitled to receive compensation under Nebraska’s workers’ compensation law. Accordingly, burial expenses and end-of-life medical care were the only benefits paid on Cary’s behalf.

The trial court judge ruled that since Cary’s parents were not entitled to any workers’ compensation, he would allow them to seek damages directly from their son’s employer. The judge ruled that workers’ compensation was not the exclusive remedy for these parents. This ruling will allow parents to recover fair compensation from employers who don’t provide a safe workplace.

2013: Centennial Year for Workers’ Compensation in Nebraska

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100 Years of Nebraska Workers’ Compensation

The year 2013 will mark 100 years of workers’ compensation law in Nebraska. This state was a leader in adopting the new protections and benefits for workers. The first workers’ compensation laws in the United States were enacted two years earlier, and few states had followed by 1913. Workers’ compensation laws were hailed as social progress, if not outright human-rights triumphs. Nebraska was a leader in protecting workers’ rights. Much has changed since then.

 

The current workplace is not the workplace that existed 100 years ago. The jobs then were much more physically demanding and dangerous. The injuries and diseases are not the same. Repetitive-motion injury was not contemplated or compensated. Cancer from industrial solvents was not contemplated or compensated. Mental disease was stigmatized by society and essentially not compensated. Medical practice was less specialized, and treatment options were much more limited.

 

Interested parties have long been working to keep the law in sync with the times. The law has changed from time to time, but some of the bedrock concepts, such as requiring “accident” have resulted in some rules that lawyers call legal fictions, for instance. Medical benefits that experts consider the most basic protection are the most costly part of the system, and cost increases are an area of constant concerns.

 

Competing legislation is presented each year with incremental changes resulting. The last major revisions happened 20 years ago. The annual arguments sometimes get heated, but the law seems to advance. The big picture is something we can be proud of.

 

Nebraska law has the highest rating of any state under presidential-commission guidelines established in 1972. Premiums and costs are in the mid-range of the states, as are worker benefits. Nebraska is rated as the 2nd-best state legal climate by the U.S. Chamber of Commerce. Nebraska is one of few states that has robust vocational rehabilitation benefits for injured workers. Hopefully we can continue working together to maintain and improve Nebraska’s workers’ compensation law in ways that benefit all of the competing interests.

 

Bottom-line conclusion: Nebraska law is doing well for a centenarian. Let’s keep cooperating to ensure progress.

Highlights From Nebraska’s 102nd Legislative Session

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Nebraska State CapitolClients of Rehm, Bennett & Moore helped make a positive difference this legislative session. They are parents who lose their children as a result of work injuries.

Albert and Diane DeLeon of Grand Island persuaded their state Sen. Mike Gloor to introduce a bill that was signed into law that increased the funeral benefit from $6,000 to $10,000. This was after they lost their son Emilio in a construction accident. In addition, Gene Cary testified in favor of a similar bill that would have raised the funeral benefit for the families of dead workers as well as giving a $25,000 death benefit to parents who have had a child killed in a work accident. Gene’s son Neil was killed in a work accident in 2010. The bill awarding an automatic death benefit to parents who have their child killed in a work accident failed to advance out of committee. Bills held in committee are killed for this session of the legislature and must be re-introduced next session. However, the combined stories of Cary and the DeLeons helped to advance the cause of parents who lose a child in a work accident.

Besides the bill increasing funeral benefits for parents who lose their children in work accidents, the only other bill to pass that affected injured workers was a bill that gave employers protections for information given in employment references.

Besides the bill increasing funeral benefits for parents who lose their children in work accidents, the only other bill to pass that affected injured workers was a bill that gave employers protections for information given in employment references. As the bill was originally introduced by Sen. Charlie Janssen of Fremont, the bill would have given employers almost free reign to Continue reading

An example of why some work comp settlements should be approved by courts

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Nebraska requires under Neb. Rev. Stat. 48-139 that all workers compensation settlements involving workers not represented by counsel be approved by the workers compensation court. Last week I came across an example of why this law is good policy.

Luckily for my client, this “agreement” is not valid so he can compensated to the full extent of the law for his work injuries.

I signed up a client who was injured in a roof collapse while doing demolition work at a local bar last Sunday. The employer drafted a “full satisfaction and release” of client’s work comp claim for $45 and for payment of my client’s emergency room visit the day of the accident. For an injured worker without health insurance the prospect of having not having potentially expensive ER treatment paid for is a powerful incentive not to pursue their rights under their jurisdiction’s workers compensation statute. Luckily for my client, this “agreement” is not valid so he can compensated to the full extent of the law for his work injuries. In my experience, this type of interference with the exercise of an injured employee’s right to workers compensation is not typical. Thankfully, Nebraska law recognizes that some employers will try to interfere with an injured workers right to compensation and provides procedural safeguards to prevent employer abuse.

Nebraska passes positive procedural workers compensation reforms

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Nebraska has enacted key procedural reforms to its workers compensation statute that will benefit injured workers. Nebraska bucked a nationwide assault on the rights of injured workers. Among the positive reforms passed by Nebraska are:

The new law will also allow trials by video conference if both parties agree.

A. Elimination of the three-judge review panel: Appeals from the trial court level in the Nebraska Workers’ Compensation court are heard by a panel of three other workers’ comp court judges before they are heard in the Court of Appeals. Continue reading