Category Archives: employment law

Why Not Prosecute Employers for Manslaughter When They Cause Worker Deaths?

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Earlier this week, I read a blog post about a contractor facing criminal charges for gross violations of safety regulations leading to the death of an employee in a trench.

Also recently, another blog post describes large Occupational Safety and Health Administration fines levied against Nebraska businesses for serious OSHA violations relating to a cave-in fatality in Alliance, Nebraska. 

Several years ago, I represented a young mother who lost her husband in a cave-in that took four lives in Nebraska and resulted in an initial penalty of more than $200,000 for multiple violation of OSHA. 

On the way to work the other day, I heard part of an NET series on the radio that talked about the many safety risks in meatpacking plants. What many people don’t know, and that the NET link points out, is that fines are related to the safety problems and violations found, not necessarily related to how badly someone was injured or whether a worker died in the incident that prompted OSHA’s inspection.

“The agency assesses fines based on violations to the Occupational Safety and Health Act of 1970, not based on injuries or fatalities those violations actually cause, (Herb Gibson, OSHA area director for the Denver office) says. A worker death, and possibly a serious worker injury, will spur OSHA into action to conduct an inspection, but a worker death doesn’t necessarily influence the final fine the company pays, even if one of the violations plays a role. 

“‘In my personal opinion, the fines could be modified for fatal cases but that’s not what the law — it doesn’t have a separate penalty for a fatality,’ Gibson says. ‘And that would require legislation to change that particular provision.’”

As a representative of injured workers, I have seen hundreds, if not thousands, of work injuries or deaths caused by gross disregard of safety codes and regulations by employers. Trench deaths are an example of such situations. They are highly preventable if OSHA regulations are honored.

Yet, I am unaware of a Nebraska  prosecutor filing criminal charges, even though we have statutes supporting such charges. 

In Nebraska, one definition of manslaughter states: “A person commits manslaughter if he … causes the death of another unintentionally while in the commission of an unlawful act.” 

Violating safety codes or OSHA violations are unlawful acts. Causing human beings to work in trenches that do not follow OSHA  is an unlawful act. Why not make examples of businesses that violate safety laws? Perhaps then more employers would treat safety in the workplace with more diligence and respect for workers and their families.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. 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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Jon Rehm to Speak on Retaliation at NSBA Seminar on Friday

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Shareholder Jon Rehm will present on whistleblower and retaliation law

Firm shareholder Jon Rehm will present on whistleblower and retaliation law to about 40 other employment lawyers at the annual Nebraska State Bar Association’s annual Labor and Employment Law Seminar. Rehm will present on this topic with Mark Fahleson, a prominent and respected employment defense attorney.

“Preparing for this seminar has crystallized for me the importance of employees acting as soon as possible if they think they have been retaliated against in the workplace. The Nebraska Fair Employment Practices Act provides strong protections against retaliation, but employees need to act promptly to pursue those rights,” Rehm said. “Nebraska law favors employees who file a complaint in court or with the Nebraska Equal Opportunity Commission within 300 days of when they were fired or forced to quit.

“The main reason that you want to file a retaliation compliant or charge within 300 days is that an employee can be awarded attorney fees and front pay if they can bring a retaliation complaint under the Nebraska Fair Employment Practices Act.”

However, employees who fail to file a charge or complaint within 300 days may have a legal way to address retaliation as well.

“Nebraska courts have held that certain activities, like filing a workers’ compensation claim or opposing some criminal activities, give employees the right to sue their employer for wrongful termination. This is called the public policy exception to employment at will. These cases have a four-year statute of limitations. You can’t win attorney fees or front pay in these cases, but you can win emotional distress damages and economic damages as well. “

Though the public policy exception cases may not allow employees to collect as much in damages, sometimes they are the only remedy available for a worker, Rehm said.

“The Nebraska Fair Employment Practices Act only applies to employers with more than 15 employees. So if you work for a small employer, you can’t bring a case under that act, but you can bring it under the public policy exception. The Nebraska Fair Employment Practices Act also only applies if you oppose the illegal or unlawful conduct of your employer, not your co-workers. Under the public policy exception, you can actually bring a case for opposing the illegal or unlawful conduct of your co-workers.

“The other lesson that became evident for me in preparing for this presentation is how retaliation can seem straightforward on the surface but can be incredibly complicated. Preparing for this seminar has given me the chance to reflect on over 10 years of representing employees in retaliation cases.”

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. 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, Firm News and tagged , , , , .

Study: Work Injuries Could Increase Risk of Losing Job

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“Compared to colleagues reporting no injuries, workers who were hurt were more than twice as likely to be fired in the next six months. … After one year, 30 percent of workers had been injured at work and about a quarter were no longer employed at that job after 18 months.”

Can you guess specifics about the quote above, or at least start with figuring out which industry the quote is talking about?

The answer may surprise you (or maybe not, if you or a loved one have worked in this industry): it’s results that “used data from a study done by the Work, Family and Health Network involving direct care workers from 30 nursing homes across New England,” according to the study’s lead author. Cassandra Okechukwu, the lead author, offered that the study’s “original goal was to examine workplace policies meant to improve workers’ health, safety, and wellbeing.”

I am glad that Okechukwu and her team followed the data where it led, even though that wasn’t the original intent of the study. I am also glad that Madeline Kennedy wrote about the study’s results at this link via Reuters Health.

“The results also indicate that federal and state-level regulations, which are supposed to protect workers from being fired after injuries and to give workers compensation and sufficient time to recover from an injury, may not always be followed,” Kennedy wrote.

The study included 1,331 nursing home workers who completed interviews at six-month intervals and reported injuries and job changes for the previous six months in each interview, according to Kennedy. “Nine in 10 of the participants were women, and more than two thirds were certified nursing assistants.”

“Workers who had been injured multiple times were also twice as likely to quit their jobs in the next six months as colleagues with no injuries, the study found. … Compared with people who were not injured, injured workers were 30 percent more likely to no longer be in their jobs within six months of the injury, whether voluntarily or involuntarily.

“People who were injured more than once were more likely to choose to leave their jobs than people with no injuries, while people injured only once were more likely to be fired.”

Why workers are being fired is a question that needs to be examined in another study, according to Okechukwu. I would add that additional research always needs to be done, and I hope someone addresses this issue, as I think it is very important to know about for injured workers and those of us who work with and care for them.

Another researcher Kennedy quoted in the Reuters article who wasn’t involved in the study was Peter Smith, from the Institute for Work and Health at the University of Toronto.

Smith suggested that “workers may be fired because their employers feel they can no longer perform the job duties, or due to worries that they will be injured again,” or that workers elect to leave their jobs because they’re scared of being hurt.

“‘Work is not supposed to lead to injury,’ Smith said, and employers should give workers resources to protect their health and earnings. ‘Measures must be put in place to ensure that employers do not fire or discipline workers because they have had a work-related injury,’ he said.” 

If you or a loved one have questions about a work-related injury or suspect you’ve been fired because of an injury at work, please speak with an experienced lawyer.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. 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, Workplace Injury, Workplace Safety and tagged , , , .

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, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. 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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Pregnant Workers Should Get Workers’ Compensation If They Have a Claim

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pregnany at wrokA new law went into effect during 2015 in Nebraska that requires employers of 15 or more employees to accommodate pregnant workers on the job. This is a significant change that affects working women by expanding workplace protections for those who become pregnant.

Nebraska’s protections for pregnant employees go beyond even the standards for pregnancy discrimination under federal law. The new law also protects women with post-childbirth medical conditions and women who choose to breastfeed or pump.

This law means that pregnant women in Nebraska will be able stay on the job longer and will have an easier time returning to work.

This accommodation includes obtaining “equipment for sitting, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light-duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for breastfeeding or expressing breastmilk.” Nebraska Revised Statute 48-1102 (11)

These changes outlaw discrimination against a pregnant woman with respect to hiring, advancement, discharge, training and other terms, conditions and privileges of employment. These protections extend to a pregnant employee before, during and after a pregnancy.

Unfortunately, pregnancy doesn’t mean that women can avoid work injuries, especially in female-dominated fields like nursing and human-services support. Sometimes employers and/or insurers will attempt to use the excuse that since an employee is going to be out because of pregnancy that they do not have to pay temporary disability benefits to an injured worker who is suffering from a work injury.

But when an occupational or work injury and a non-occupational injury, combine to cause disability, employers still have to pay those disability benefits. Nebraska’s new law on pregnancy doesn’t change that fact. If anything, smart and ethical employers will attempt to accommodate injured pregnant employees in legitimate light-duty jobs so they do not have to pay disability benefits.

In addition, when a pregnant employee is injured on the job and is receiving workers’ compensation benefits and later is ordered by her physician not to perform certain work activities or is in need of bed rest due to the pregnancy, an injured and pregnant employee’s workers’ compensation benefits cannot be reduced or suspended on account of the pregnancy in both Nebraska and Iowa.

However, not all employers and workers’ compensation insurance carriers understand or follow the law. If you are injured and not receiving workers’ compensation benefits because your employer says that they could accommodate your job but for you being pregnant, you need to call a firm that handles both discrimination and workers’ compensation law. You should also call an employment lawyer if you are pregnant and being forced to take unpaid leave rather than having your job duties modified or changed.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. 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, Health, Nebraska, Workers' Compensation 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, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. 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 , , , .

Companies Must Understand: Labor is About More Than Just Jobs

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Today’s post was shared by U.S. Labor Department and comes from blog.dol.gov

National Apprenticeship Week was earlier this month. Do you know someone who has been an apprentice or who has a technical job and taken a different path than a four-year degree to get there? What do you do to stay on top of the technology changes in your industry? Does your industry rely on technology, and how has your job changed over the time you have been working due to technology?

People should expect to have a number of jobs throughout their work life and even may have numerous careers. Learning the skills to be flexible and continue to learn is essential, and this is one reason that apprenticeships are so appealing. But they definitely must be paid. In addition, most apprenticeships hopefully will lead to full-time jobs with full-time benefits.

I just hope that in programs like the one Nestle highlights in the blog post that worker and workplace safety in the company culture is right up there with skill building as far as priorities taught to apprentices.

NiM-FBL_Apprenticeship-02

Every day, Americans are encountering new technologies that would have been unthinkable a generation ago. From smartphones to the notion of recreational space travel, it can sometimes feel like we’re running on a technology treadmill.

The challenge, of course, is keeping up.

In the world of manufacturing, incredible advances fueled by technological innovations have remade industry in large and small ways, leaving a “middle-skills gap” — in essence, technology has outpaced our workforce. Yet this gap is also an opening for companies to help 21st-century workers keep pace with the treadmill. This issue will certainly be front and center during this presidential campaign cycle, and National Apprenticeship Week — starting Nov. 2 — provides a sound moment for businesses to ask: Are we helping our employees keep pace — for us and for them?

At Nestlé, the technology and skills needed vary from plant to plant, from product to product. The processes and production lines are altogether different, depending on whether we’re making baby food or ice cream, pet food or coffee. The more diverse a business’s portfolio, the more diverse its workforce needs to be.

That’s why Nestlé and companies like ours are creating new paths of opportunities for workers around the globe. In the United States, that means ramping up the number of apprenticeships, creating rich internships and conducting instructive traditional and…[Click here to see the rest of this post]

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. 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 Employee Misclassification, Employment, employment law, Unemployment and tagged , , .

Thanksgiving Thoughts: Appreciating Workers and Stores Closed on Holiday

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thanksgiving.jpegWhat are your plans later in the week? Will you gather with family, friends, and loved ones? And do you plan to go shopping? Or do you have to work and just hope, like many truck drivers, that you’ll get a warm meal that may or may not involve turkey on Thursday?

I want to thank everyone who doesn’t have a choice in the matter and who will be working on Thursday, including first responders, health care workers, truckers and retail workers. I also want to provide a few links to online articles I found that list stores that have chosen to be closed on Thanksgiving so these employees can be with their loved ones, whether friends or family. Each list is slightly different, and I realize that there are different stores in Iowa and Nebraska, too, so that’s why there are three links.

In addition, if you plan to do some shopping on Black Friday, please take note of this OSHA FactSheet resource regarding crowd management safety guidelines from the U.S. Labor Department’s Twitter feed.

Also note that the offices of Rehm, Bennett & Moore and Trucker Lawyers will close at 3:30 p.m. on Wednesday, Nov. 25. The offices will be closed on Thursday, Nov. 26, and Friday, Nov. 27, for the Thanksgiving holiday. We will be open again at 8:30 a.m. on Monday, Nov. 30.

We are thankful for so much. At this time of reflection, we are especially thankful for family, friends, and the opportunity to advocate for clients who make our work worthwhile. Happy Thanksgiving!

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. 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, Holiday, Iowa, Nebraska, OSHA and tagged , , , .