Tag Archives: unemployment benefits

“Worker Flexibility and Choice Act” shows how worker misclassification is destigmatized, normalized

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The WFCA will create all sorts of problems with unemployment insurance claims handling and more litigation over waiver enforceability. While it may not impact workers’ compensation directly, it will likely indirectly suppress workers’ compensation claims as employees may not believe they are covered even if they are

The so-called “Worker Flexibility and Choice Act” (WFCA) introduced by Rep. Henry Cuellar (D-Texas) and Rep. Elise Stefanik (R-N.Y.) would create a new class of worker with fewer rights than a typical employee and would allow more employers to get in on the employee misclassification game.

The WFCA would allow workers to “agree” to what amounts to an independent contractor status where employers wouldn’t play employment taxes like unemployment, social security or Medicare, but workers would still be covered by anti-discrimination laws.

Importantly the WFCA would also pre-empt state laws. This legislation is a bad idea for a lot of reasons.

Unemployment insurance

During the mass layoffs in the early part of the pandemic, Congress authorized separate unemployment insurance for gig employees, PUA, who weren’t otherwise eligible for unemployment insurance.  But when states had to decide whether a worker was eligible for regular unemployment or PUA it just lead to more delays for already overwhelmed state agencies trying to determine eligibility for unemployment benefits. If something like WFCA becomes law before the next recession, expect even more delays for unemployment.

Maybe the pre-emption under WFCA would make those decisions easier as it would be clear that those workers wouldn’t be eligible for unemployment benefits.  But if the WFCA waiver is interpreted similar to arbitration waivers (see below), state agencies may argue correctly argue that they aren’t bound by such waivers.

Litigation over enforceability of waiver of employment law and tax

Proponents of the WFCA will argue that workers will have to voluntarily agree to contractor status. This “agreement” will probably be the similar to how employees “agree” to arbitrate employment disputes through checking a box on a form during an “onboarding” process. Unfortunately, arbitration “agreements” are routinely upheld by courts. I fear the same will happen if something like WFCA becomes law.

Workers’ compensation?

Workers’ compensation laws are state laws, so the WFCA shouldn’t directly impact workers compensation. But the same impulse behind WFCA is at work in the states. Jeff Blackwell recently wrote about Alabama passing a qualified marketplace contractor law that would exempt gig workers from workers’ compensation laws.

But even if federal laws that allow employers to misclassify workers don’t directly impact workers’ compensation, my belief is that they will discourage employees from bringing claims anyway. They will indirectly suppress workers’ compensation claims. Workers who think they are contractors tend not to bring workers’ compensation claims.

What about employment law claims?

Yes, the WFCA does allow for discrimination claims. But the fact that employers are willing to allow those claims for certain kinds of contractors underscores how anti-discrimination law is skewed towards employers.

Big picture

Supporters of the WFCA,  seems to think that the problem with employee misclassification isn’t that workers are being misclassified as contractors, it’s that not enough employers can misclassify their workers as contractors. The Guardian recently ran a series about how former Obama administration officials used their influence to lobby for Uber in the mid-2010s. These Democratic operatives helped normalize the gig economy by giving it a strong bi-partisan sheen. As we move into the 2020s, the employee misclassification normalized and de-stigmatized by the gig economy is allowing more employers to legitimately get into the misclassification game.

The offices of Rehm, Bennett, Moore & Rehm, 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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Feds prosecuting COVID fraud by employees

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My jaw dropped last Tuesday when I read a blog post by Ohio-based management defense attorney Jon Hyman.

Hyman posted the Department of Justice criminally charging an employee for allegedly defrauding his employer by submitting a forged doctor’s note stating he had COVID-19. Human Resources and management-side defense social media share a near obsession with Family Medical Leave Act (FMLA) fraud by employees.

So why can HR now sic the FBI on employees who forge  off-work notes?

The CARES Act, interstate commerce and taxing power

The answer to this question is the CARES Act. Passed in response to the COVID-19 crisis, the CARES Act amended the FMLA to provide some employees with paid leave related to COVID-19. The CARES Act also used federal funds to expand unemployment benefits related to COVID-19.

Normally state law would govern the prosecution of small-time workplace fraud under crimes like forgery and unemployment fraud. But a federal bailout creates federal criminal jurisdiction. The United States Department of Justice is aggressively prosecuting COVID fraud. Some employer-advocates question the use of the federal power to regulate interstate commerce for the good of employees. But the interstate commerce clause also expands the ability to federalize crime. It seems like employer-advocates are welcoming the expansion of federal authority to prosecute fraud by employees.

Federal taxes partially fund unemployment benefits. This would give the federal government the power to federalize unemployment fraud through the taxing power granted to Congress by the Constitution.

The real COVID fraudsters

The Georgia case is the first known incident of an employee being prosecuted for forging a medical note. COVID-related fraud mirrors workers’ compensation fraud in that most fraud is not committed by employees.  Apparently organized crime is submitting false unemployment claims. Some individuals and businesses are falsely submitting claims under the Paycheck Protection Program. If an employee suspects their company is abusing the Paycheck Protection Program they could bring a claim under the False Claims Act.

But while low level employees are not committing the vast majority of COVID fraud, low-level employees are the easiest to prosecute. Prosecuting low-level employees for COVID fraud serves at least two purposes for employers.

Reopening and unionizing

As the perceived threat of COVID recedes, many businesses are reopening and employees are returning to work. Employers complain that some employees are reluctant to return to work because of enhanced unemployment benefits. However many employees are expressing safety concerns about COVID exposure. Publicizing the prosecution of COVID fraud by employees calls into question the legitimacy of employee safety concerns. Criminalizing COVID fraud by employees also allows employers and their mouthpieces in the media to portray workers worried about COVID as welfare cheats.

The use of state power on behalf of employers against employees serves another purpose. Mike Elk of Payday Report tracked walkouts and strikes related to the COVID 19 pandemic. Management-side pundits are also expressing concern about rising pro-union sentiments by employees.  Prosecuting employees is one way to intimidate employees who want to form unions or engage in collective action in the workplace.

The offices of Rehm, Bennett, Moore & Rehm, 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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Will I Be Able To Collect Unemployment Benefits?

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When people are hurt at work, they are often compelled to file for unemployment benefits. This may be because they are fired for not being able to do their job or end up quitting because they are no longer physically able to do their job.

If you quit, you will have to show that you did so with good cause. If you physically can no longer do your job because of your injury, that qualifies.

If you have been terminated, your employer may attempt to withhold unemployment benefits. To do this, your employer will have to demonstrate that you were terminated because of a misconduct on your part. Misconduct is intentional behavior by you. For example, if you are not performing at work even though you are medically capable of doing your job and have been told to improve, if you call in sick numerous times for unnecessary reasons, or if you don’t show up for work, these behaviors would qualify as misconduct.

Your employer would have to show documentation of these behaviors at an unemployment hearing. If documentation is not available and it comes down to your word versus your employer’s word, the likelihood is that you will win your case and will be able to collect unemployment benefits.

If you have questions about employment issues or unemployment benefits, our attorneys are licensed to practice in Nebraska and Iowa. I can also refer you to an expert attorney in another state if needed.

The offices of Rehm, Bennett, Moore & Rehm, 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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Misconduct, Good Cause, and Why It’s Better to be Fired than to Quit

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People who quit their jobs may not be eligible for unemployment benefits.

A worker in Nebraska can be penalized on their unemployment benefits for two reasons:

  1. they quit their job without good cause, or
  2. they committed misconduct in connection with their employment.

Why it is better to be fired than to quit

If you are fired, your employer must be able to prove that you committed misconduct in connection with your employment. In layman’s terms, they have to show that you made a decision or decisions to intentionally disregard reasonable standards related to your job. However, my experience is that if you appeal an adjudicator’s initial decision, many employers don’t understand they have the burden to prove that it is more likely than not that you did something wrong. Also, oftentimes managers and HR professionals do not understand the nuts and bolts of how to prove their case.

But, if you quit, then you have to prove that you quit for good cause. Nebraska law defines good cause.

This puts the burden on you to prove the case. This means that not only do you have to Continue reading

The offices of Rehm, Bennett, Moore & Rehm, 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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