Category Archives: employment law

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.

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.

2015 Mileage Rates Rise to 57.5 Cents per Mile

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Injured workers should be reimbursed for mileage and travel expenses that are related to the medical process in workers’ compensation claims, as I wrote about last year on the blog. It continues to be essential to keep track of detailed receipts, as it definitely helps with submitting those expenses to get reimbursed in a timely manner.

The 2015 mileage reimbursement rate has risen to 57.5 cents per mile, according to the IRS. This “adjustment takes into account all the costs associated with owning a car, including insurance and repairs,” according to this article in Forbes. That also means the rate has increased, even though gas costs have recently gone down.

Generally speaking, the federal rate changes annually. However, when gas prices went soaring in 2008, a mid-year increase went into effect.

As a reminder from a blog post that firm partner Todd Bennett wrote in 2011, injured workers can be reimbursed for activities such as “travel to seek medical treatment, pick up medications, or while participating in a vocational rehabilitation plan.”

The best way to do this is to work with your attorney and legal assistant to keep track of all mileage. This can include appointments for Independent Medical Exams (IME), too. Then your attorney can help you get reimbursed.

It is often essential to save receipts and keep a record for yourself of your doctor’s visits and other reimbursable trips, including physical therapy and trips to pick up medication. Providing that log to your attorney and saving receipts incurred from specific doctor visits and other reimbursable trips creates a “narrative” that makes it easier to justify those expenses.

Because money is always tight for injured workers, contact an experienced workers’ compensation attorney if you have questions about a specific situation.

Health Care Testing: A New Frontier for Worker’s Comp

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Today’s post comes from guest author Thomas Domer, from The Domer Law Firm in Milwaukee. Although the firm has featured a related blog post before, I think it is worthwhile to re-examine this subject. As has been mentioned below, there are a number of potential issues that could arise from such tests. In addition to the monetary fine for those who did not participate in the screenings, the workplace can seem less welcoming, regardless of whether person’s challenge is physically obvious. Take high cholesterol that has a genetic basis, for example. If a worker gets a fairly regular physical (annual or otherwise) through the preventative side of their health insurance benefits, that employee is probably already being treated for this issue and also probably doesn’t need the added bother of a company or contract nurse calling to espouse the benefits of decreasing that number, as these are concerns between workers and their doctors. Because for this particular issue, it is very possible that genes can trump what is considered the “healthier lifestyle” referred to below, even if that person appears to be more physically fit than other co-workers. In addition, it might be argued that genetic predisposition could be blamed when an occupational exposure is the cause, as Mr. Domer alludes to below. So even with money or benefits on the line, though losing $4,000 is definitely significant, it might be worthwhile for an employee to reconsider whether participating in a company’s wellness testing is really worth it in the long run.

As a worker’s compensation lawyer, I see many news stories through the prism of how the news event or trend will affect injured workers in the worker’s compensation system. A federal judge in Minnesota has ruled that Honeywell, Inc. can begin penalizing workers who refuse to take medical or biometric tests. 

The EEOC had claimed Honeywell’s policy violated the Americans With Disabilities Act and the Genetic Information Nondiscrimination Act. They filed a lawsuit in Minneapolis on behalf of two Minnesota employees of Honeywell.

The tests Honeywell required their employees to take measured blood pressure, cholesterol, and glucose, as well as signs that employee had been smoking. Employees who declined to take the test could be fined up to $4,000 in surcharges and increased health costs. Honeywell said the program is designed to “encourage employees to live healthier lifestyles and to lower health care costs.” Honeywell says the testing promotes employee well-being. Management also indicated “We don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.”

The ramifications of such testing for worker’s compensation immediately come to mind. In any kind of an occupational exposure claim, such tests could be used to help deny worker’s compensation claims for employees who smoke, are overweight, have diabetic condition, claims involving occupational back conditions, carpal tunnel claims, and any kind of respiratory complaints. Another “slippery slope” may be the use of these kinds of testing to actually screen prospective employees, since the employer rationale would be that hiring folks with those pre-existing conditions would cost the employer more money.

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.

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.

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.

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