States with Opt-Out Workers’ Comp System are Strict on Injured Workers

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

Today’s post was written by guest author Hayes Jernigan, from The Jernigan Law Firm in North Carolina. In 2015, ProPublica and NPR have done a great service to the public by making in-depth reports on workers’ compensation systems in many states. Their most recent focus was looking at the opt out systems implemented Texas and Oklahoma. These similar systems essentially strip workers of the protections that workers’ compensation gives, stacking the deck dramatically toward employers and their insurance companies.

Fortunately, Nebraska is not an opt out state yet. But many Nebraska employers, especially those who are self-insured for the purposes of workers’ compensation, have adopted many tactics from opt out states. I think the most prevalent tactic is hoodwinking employees into filing for short- or long-term disability when an injury should be covered by workers’ compensation. Employees often unknowingly agree to this in situations where the work duties aggravated an old injury or pre-existing condition or if there is some minor delay or defect in reporting the injury. If you sign up for private disability insurance, you are often asked to deny that your disability is work related. That can doom any possible workers’ compensation claim in the future. If you are being asked to sign up for long-term or short-term disability for a medical condition that may have been caused by work injury, contact a workers’ compensation attorney.

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

This morning we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.


To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.

A Seat at the Table: Lifting the voices of Americans at work

Rob Hathorn at the White House

Rob Hathorn shares his story alongside Joe Schmidt, an employee at Market Basket, in the East Room during the White House Summit on Worker Voice on October 7.

Today’s post was shared by the U.S. Labor Department and comes from

What kind of investment do you, as a worker, have in the company for which you work? And what kind of an investment does the company have in you?

This article talks about all kinds of useful values when it comes to workplace culture and was based on the White House Summit on Worker Voice.

What values are shared and appreciated in your workplace? And are all included in the discussion? Be sure to read the entire article so you can see the six principles that President Obama laid out to help achieve the goal of shared prosperity for all workers.

All are important for a well-rounded discussion, but I was especially interested in number 3: “If you work hard in America, you should have the right to a safe workplace.”

We see the consequences, on a daily basis, of that particular principle falling short. But businesses can and should do better. I hope they will.

Have a safe and productive day.

Last week, autoworker Rob Hathorn sat in the East Room of the The White House and told his story:

He and his wife and their six year old daughter live in Mississippi, where he works at the Nissan plant in Canton. Rob is a production technician on the frame line, but when he started at the plant, he wasn’t a Nissan employee. Instead, he worked for a contractor, earning less and receiving fewer benefits than the people working right next to him. After two years, he was able to transition to being a Nissan employee, but only as a so-called “PermaTemp,” a permanent, temporary employee and an oxymoron if I’ve ever heard one. That means he earns $14 an hour, and the highest he can ever earn is $18.35. Full-time Nissan employees working alongside him doing the same job earn $24 an hour. He would have to work 70 hours to earn the same amount that some of his coworkers earn in 40. He has to train workers who earn more than him to do the same job.

Sitting next to Rob in the East Room was Joe Schmidt, the operations supervisor for Market Basket — a New England regional grocery chain that made national headlines last year when employees up and down the chain of command — from baggers and warehouse stockers to long-tenured managers — walked off the job to protest the firing of their beloved CEO. I asked Joe what would happen if there were two people working side-by-side at Market Basket, performing the same tasks, but one earned just a fraction…

[Click here to see the rest of this post]

ProPublica: Big Problems with Workers’ Compensation Opt Out

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

ProPublica has published a new and shocking exposé on the continued corporate efforts to do away with workers’ compensation. Big Busness wants to decide how much they can pay without legally required benefit levels. They want laws that allow the fox to guard the henhouse to borrow an old country saying. Texas has already allowed this situation. Working families and their supporters need to gird their loins for battle after battle to preserve and improve the workers’ compensation system while Big Business continues to spend time and money to take benefits away.

Why Social-Media Hoaxes Hurt Consumers and Employees

Doubtless most of you have seen a hoax posting on Facebook claiming Facebook will charge people $5.99 to maintain their privacy settings unless they cut and paste a legal disclaimer on their status. Here is why this hoax is ridiculous on its face and how hoaxes like this undercut the cause of people who have legitimate grievances against corporate wrongdoing. 

One reason why this hoax is ridiculous: The Rome Statute

The Facebook hoax alleges Facebook is violating the “Rome Statute.” This is funny. The Rome Statute is part of the treaty establishing the International Criminal Court (ICC). The ICC was established to prosecute war criminals and those who commit genocide. A commercial dispute with a social-media company wouldn’t fall under the jurisdiction of the ICC. The United States has never signed the treaty agreeing to be subject to the ICC, so American courts couldn’t hear a case under “The Rome Statute” even if Facebook was violating said statute.

Why hoaxes hurt consumers with legitimate grievances against corporations

The McDonald’s coffee case is ingrained into popular culture and is used an anecdote against those who file frivolous lawsuits and the supposedly greedy trial lawyers who represent them. The details of that case were exaggerated by those who seek to limit the rights of consumers. In fact many stories about crazy lawsuits are almost outright fabrications and hoaxes. These hoaxes are often shared via social media, just like the latest Facebook hoax.

Media coverage of the latest Facebook hoax is framed as a rational, benevolent technology company responding to crazies. But there are times when people have legitimate complaints against technology companies and may seek to address those complaints in court. Amazon’s mistreatment of white-collar professionals and its blue-collar warehouse workers are two examples. Like any other major corporations, technology corporations seek to use legal means such as arbitration clauses and immunity clauses to evade responsibility for their mistreatment of employees and consumers.

One of the main advocate groups against immunity and forced-arbitration clauses are trial lawyers through various trial-lawyers organizations like the American Association for Justice and their state-level counterparts. Believing and spreading hoaxes about Facebook privacy settings or crazy lawsuits serves the interests of those who would seek to prevent everyday people for addressing legitimate injuries and grievances in court.

Hurt at Work? Here’s Your Eviction/Foreclosure Notice

For too many of our clients, an injury at work means certain financial distress. Even for clients whose benefits are paid in a timely manner, there are certain built-in time frames when they will receive no benefits or benefits at a much lower rate than a full paycheck (sometimes as little as 5 or 10 percent of a typical paycheck).  

In Nebraska, temporary benefits are paid only until maximum medical improvement is reached. We try to have a report waiting for the doctor when it appears as if he may conclude an injured worker is at that point. However, due to the workload of the doctors and sometimes the need for a Functional Capacity Evaluation, a worker can go months without any benefits coming in before the receipt of the report. There is no interim benefit payable to get a worker and his or her family by until permanent benefits are paid.  

This situation is made worse when a claim is denied. In that situation, a worker may find herself unable to work for several reasons. First, an employer may not think it’s their responsibility to accommodate work restrictions for a non-work-related injury. This may also ultimately result in a worker being fired for missing too much work. Second, a doctor may not allow the worker to work due to the severity of the injury. Typically an employer will refuse to pay temporary benefits since the claim was denied.  

Most families in this country live paycheck to paycheck or with only a month or two of built-up savings.

“Forty-four percent of Americans are either in debt, have no savings at all, or have only enough savings to tide them over for up to three months if they lose their jobs, according to an Assets and Opportunity report last year,” according to this article on the Fiscal Times website

Too often in this country, families of injured workers are being evicted or losing their homes due to gaps in the compensation system for work injuries.  “In reality, the costs of workplace injury and illness are borne primarily by injured workers, their families, and taxpayer-supported safety-net programs. … Workers’ compensation payments cover only a small fraction (about 21 percent) of lost wages and medical costs of work injuries and illnesses; workers, their families and their private health insurance pay for nearly 63 percent of these costs, with taxpayers shouldering the remaining 16 percent,” according to a recent OSHA report titled Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job

Legislatures should endeavor to create a payment system to alleviate the built-in financial woes for even compensable injuries.