Category Archives: Unfair employment practices

Overturning DOMA Will Increase LGBT Rights in the Workplace

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The impact of the U.S. Supreme Court decision overturning the Defense of Marriage Act will be felt in the workplace.

First of all, overturning DOMA will expand anti-discrimination protections and partner benefits to lesbian, gay, bisexual and transgender employees who are employed by the federal government.

Overturning DOMA will also probably benefit LGBT employees not working for the federal government. One argument is that banning LGBT discrimination in federal employment will ease acceptance of extending anti-discrimination protections to lesbian, gay, bisexual and transgender workers in the workforce as a whole. Legislation has been introduced that would explicitly extend protections of federal and state fair-employment statutes to LGBT workers.

From a political point of view, explicitly extending fair-employment statutes to cover LGBT workers probably won’t be feasible until at least 2015, depending on the outcome of the 2014 elections. Politicians in “red states” in both parties may be wary of conservative backlash if they support extending fair-employment practices. That same reticence will probably be displayed by Senate Majority Leader Harry Reid who needs to Democrats to win in several conservative states in order to hold on to the majority.

But the recent decision overturning DOMA may further open the door to judicially expanding employment statutes to lesbian, gay, bisexual and transgender employees. Justice Anthony Kennedy and the liberal bloc struck down DOMA on Fifth/14th Amendment equal-protection grounds. If states can’t discriminate against gays in marriage on equal-protection grounds, it doesn’t make logical sense that the Fifth/14th Amendment allows employment discrimination against LGBT workers.

It is arguable that LGBT people already have the protections of our fair-employment laws under the theory of sex-plus discrimination that prohibits discrimination based on sexual stereotypes. In Smith v. City of Salem, Ohio, the Sixth Circuit Court of Appeals extended protections under the sex-plus theory to a male firefighter who started identifying as a woman. In Lewis v. Heartland Inns of America, the conservative Eighth Circuit Court of Appeals upheld a finding of possible finding of sex discrimination for a woman who was described by her boss as having “an Ellen DeGeneres kind of look.” Though the Eighth Circuit didn’t make any reference to sexual orientation in the decision, it is obvious that “Ellen DeGeneres” is a code word for “lesbian.” It makes sense to me that opposite-sex attraction is a stereotype for each gender and that discrimination against LGBT people should be covered under the theory of sex-plus discrimination. I think courts will be increasingly be forced to rule that way in the wake of the decision on DOMA stating that discrimination against gays and lesbians runs afoul of the Fifth/14th Amendments. Another possible factor working in favor of expanding fair-employment protections to LGBT workers are recent Supreme Court decisions interpreting federal fair-employment law favorably for employers. It’s easy to conceive of a moderately conservative judge in the mode of Justice Kennedy judicially extending fair-employment law to gays and lesbians with the understanding that it will likely be more difficult employees to win fair-employment suits.

Until Congress and/or our state legislatures act, LGBT employees are not guaranteed equal rights at work. But thanks to the decision overturning DOMA, I think courts will be more open to extending workplace rights to the LGBT community, regardless of what is done in the legislative branch.

Why Overturning DOMA Is a Win for Employee Rights

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Regardless of your opinion on the issue of gay rights, Wednesday’s U.S. Supreme Court decision overturning the Defense of Marriage Act is a win for workplace fairness.

The constitutional authorization for most federal fair-employment laws is based on the guarantees of equal protection of the law based on the Fifth and 14th Amendments to the U.S. Constitution and the right of Congress to regulate interstate commerce clause. In his opinion overturning DOMA, Justice Anthony Kennedy found that DOMA violated the Fifth and 14th Amendment rights of gays and lesbians. He reaffirmed the role of the Fifth and 14th Amendments in preventing discrimination.

Kennedy’s opinion is important because in last summer’s blockbuster Supreme Court decision upholding the Affordable Care Act, Chief Justice John Roberts undercut the interstate commerce clause as a justification for passing federal legislation. Conceivably, corporate opponents of workplace fairness laws could point to Roberts’ decision in the Affordable Care Act as a way to argue that federal workplace fairness laws are unconstitutional. However Wednesday’s decision in the DOMA case means that workplace fairness laws still have clear and strong constitutional support.

The DOMA decision is a bright spot in a Supreme Court session that has otherwise been pretty bleak for employees. My opinion is that as a result of recent Supreme Court decisions, more and more fair-employment cases will be brought in state court. The decision in DOMA is still relevant to state law discrimination and retaliation claims. Most states have equal protection clauses in their state constitutions. The reasoning supporting the DOMA decision supports state fair-employment statutes. I believe this is true even for fair employment claims based on retaliation. As Justice Ruth Bader Ginsberg pointed out in her dissent in Nassar, retaliation is a form of discrimination. In other words, if you have been fired in retaliation for filing a workers’ compensation claim, your constitutional rights have been violated. If the Supreme Court had decided DOMA differently, employees would have a weaker argument that a retaliatory discharge violated their equal protection rights.

Employee Rights Hurt by Supreme Court Decisions

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United_states_supreme_court_buildingEmployee rights in the workplace took a step backward with the Vance and Nassar decisions made by the U.S. Supreme Court. So what does this mean in concrete terms for employees?

Vance: The main takeaway from Vance is that employees must tell upper management and human resources about workplace harassment. This has been federal law in the Court of Appeals for the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) and the 8th Circuit (Nebraska, Iowa, North Dakota, South Dakota, Minnesota, Missouri and Arkansas). In order to sustain a workplace harassment claim under federal law, employees must now be able to show that management knew about harassment and that management failed to take effective action against the harassment.

Nassar: Nassar made it more difficult to prove retaliation under federal law. In the 5-4 majority decision written by Justice Samuel Alito, the court wrote that it was concerned about the increase in retaliation claims filed in the EEOC and the potential for “frivolous litigation.” The effect of this case is that even more retaliation cases will be decided by judges under summary judgment instead of being decided by juries.

However, just because it is harder to bring a discrimination or retaliation case under federal law doesn’t mean that an employee can’t bring a case under state law that could be more favorable to the employee. But employees pursuing wrongful termination cases in state court should be aware that state court judges oftentimes follow federal court judges in interpreting state fair-employment laws.  State court judges might find the Supreme Court’s concerns about “frivolous” retaliation suits to be well founded.

I think Justice Alito was off base in his concerns about “frivolous” retaliation where employees who are about to get fired file complaints in order to preserve their job or set themselves up for a wrongful termination lawsuit. Any competent employee-rights attorney knows that retaliation suits are difficult to win. I turn down about 9 out of 10 people who call my office who claim they were wrongfully terminated. Wrongful termination suits are costly and time consuming. I am not going to invest time and money in a suit where I will likely get dismissed and possibly face financial sanctions under court rules and also possibly be opened up to paying costs to the prevailing employer under federal fair-employment law. I am doubly suspicious of employees who are fired shortly after they file discrimination or other claims. Employers know that if they fire someone after filing some sort of complaint that it appears to look bad. But courts will uphold that reason if they had a legitimate reason to fire the employee. In other words, the employee who knows they are skating on thin ice and then files a complaint is going to lose a wrongful termination case. The decision in Nassar won’t stop disgruntled employees from filing claims with fair-employment agencies, it will just make it more difficult for employees with legitimate wrongful termination claims to obtain justice.

Is Insurance Still For Policyholders?

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Insurance began in the Middle Ages, and policies could be written for almost anything. Policies were taken out to protect risks of trade, against the death of a head of state, and for many other forms of speculation. There was almost no limit on what a policy could be written for. Additionally, there was no shared risk as these policies were taken out only by individuals.

In the early 18th century, mutual insurance was created. Instead of individuals essentially placing bets that would pay off if tragedy struck, these policies created communities of members who were concerned with offsetting risk with reward. The lack of tragedy led to the payout of dividends to the members. Gradually, governments forced the transition of insurance from legal gambling on misfortune to companies behaving more like public utilities. Mutual-insurance companies helped the betterment of society with innovations like workplace-safety measures.

Over the last four years Edmund Kelly, former CEO of Liberty Mutual, has pocketed over $200 million in compensation.

In 1911, the first workers’ compensation insurance was written in Massachusetts in the form of a state-subsidized mutual-insurance company. Like most mutual insurance, the aim was the mitigation of risk by providing incentives to reduce risk and demanding small sums from each participant that were then combined into large sums for the victims or beneficiaries of the policy.

In the mid-1990s, insurance companies began pushing for legislation to authorize them to place their assets into holding companies that could then sell stock. Critics believed the policyholders were being divested of their ownership in such an arrangement, but little true resistance was brought to bear. What has transpired as a result of this shift is that increasingly the profits from insurance companies were being captured by its executive leadership instead of being reflected as profits and returned to its policyholders as dividends.

As such, 200 years after mutual insurance was created, history reversed itself. No longer was insurance sold to people who had a stake in the assets and risks on which they bet. The community no longer bore the rewards of mutual insurance as company profits were put in the hands of the elite leadership and not distributed across policyholders. One can surmise that policyholders also lost more control over how claims were handled than was anticipated when mutual insurance was created. Policyholders also likely see little incentive to follow risk-averse practices as they receive no return benefit in the form of dividends as they used to. When profit is the only goal in business only the business itself and, more specifically, its executives truly gain. One indication of this is Edmund Kelly, former CEO of Liberty Mutual. Over the last four years he has pocketed over $200 million in compensation.

Source: The Atlantic

Employers Must Obtain And Maintain Workers’ Compensation Insurance Coverage

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Your employer is required by law to have workers’ compensation insurance for you.

Every employer not in agriculture, farm or ranch operations is required to obtain and maintain workers’ compensation coverage for all employees. Those employers who voluntarily and willfully fail to obtain and maintain coverage violate the law and subject themselves to significant risks.

If you are an employee who is injured in the course of your employment and you learn that your employer has not maintained workers’ compensation coverage for you, you can either file a claim against the employer in civil court or file a claim in the Workers’ Compensation Court.

Employers who try to avoid their legal obligations and avoid providing workers’ compensation coverage expose themselves to monetary judgments in civil court, stop-work orders from the Attorney General’s office, injunctions from continuing to operate their business, assessments against their property, daily penalties of Continue reading

Nebraska – A Rare Example Of How To Treat Student Athletes Better

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Can workers’ comp for Nebraska student athletes be an example for the NCAA?

Between the terrible events surrounding the Penn State football program, Mike Krzyzewski of Duke’s record-breaking win, and Taylor Branch’s controversial article in the September 2011 issue of The Atlantic magazine, there’s been a lot of coverage of college sports in the news lately. This isn’t necessarily unusual for Nebraskans. Our own University of Nebraska has one of the premier football programs, one which is revered by Cornhusker fans far and wide.

Recently, my good friends and fellow advocates for the injured, Charlie Domer and Len Jernigan wrote blog posts pointing out some of the challenges athletes face.

The bottom line of these posts is that athletes face serious health risks – from brain injuries to chronic obesity, and yet, in most states, collegiate athletes have only basic student health coverage to protect them and are prohibited by the NCAA’s strict rules from earning extra income to purchase additional coverage.

Since 1984, Nebraska law has provided additional protection for college athletes. Our schools offer a rare exception among college athletics programs by offering students a form of workers’ compensation.

In The Atlantic, Branch makes the point that the NCAA has treated college athletes unfairly for years. Schools profit tremendously from the risks student athletes take without compensating them beyond their college scholarships.

But Nebraska is different. Since 1984, Nebraska law has provided additional protection for college athletes. Our schools offer a rare exception among college athletics programs by offering students a form of workers’ compensation.

If we do continue to enforce amateurism in collegiate sports, perhaps Nebraska law can serve as an example for other states to follow.

This difference is because in 1984 the Nebraska Legislature enacted a law (Neb. Rev. Stat. § 85-106.05), which mandated that the University of Nebraska establish an insurance program to provide coverage to student athletes for personal injury or death while participating in university- organized games or practice in an intercollegiate athletic event.

This law covers students Continue reading

What if you are an “independent contractor”?

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FedEx is notorious for making their delivery people “independent contractors.”

Often employers and workers’ compensation insurance companies deny workers’ comp, claiming employees are independent contractors. Independent contractors are not technically employees under Nebraska’s Workers’ Compensation laws (the same is true for most states).

In fact, employers and insurance companies often use the category “independent contractor” on purpose so that they can avoid having to pay for workers’ compensation claims for injured workers.

The thing is, even though your employer or insurance company may say that you are an independent contractor, there is a good chance that you are technically an employee, covered under workers’ compensation law.

According to the Nebraska Supreme Court you are either an independent contractor or an employee depending on:

  1. The amount of control your employer asserts over you
  2. Whether you are engaged in a distinct occupation or business
  3. The kind of job you have (whether you are a specialist without supervision or not)
  4. The skill required to do your job
  5. Whether you supply the tools, place of work, and other things required to do the job
  6. The length of your employment period Continue reading