“Don’t Believe the Hype” when it comes to employment law.
This admonition was spurred by a misleading article and headline that I was e-mailed by Watchdog.org recently. The article was meant to spur outrage that a teacher who was alleged to have been drunk on the job but was allowed to get unemployment benefits in Iowa.
To Watchdog.org’s credit, they did include a copy of the actual decision. Just like in Nebraska, Iowa puts the burden of proof on an employer to prove wrongful termination. The district in exurban Des Moines never sent a representative to the hearing. The school district did not follow Iowa law in testing the teacher for drugs and alcohol. Neb. Rev. Stat. 1901-1910 lays out similar requirements under Nebraska law. Few people point out that if this teacher was such a bad employee, then maybe the school district could have spent a few hours proving their case or that they should have followed clear rules about drug and alcohol testing.
But of course, most people never get beyond the headline or the sound bite. The goal is to gin up outrage among “just regular folks” about people “milking the system” in order to get them to elect officials who will promote “personal responsibility” and “accountability.” Responsibility and accountability never seem to apply to management the same way they apply to employees.
Ginning up outrage about drunken teachers distracts from the war against workers and their allies in Nebraska and in Iowa and across the country. Fortunately, places like Iowa and Nebraska still have decent laws for employees and also have advocates who are willing and able to stand up for those laws. Regular folks in Iowa need to look at who is really trying to harm their interests on the job, and act accordingly in November. The same goes for those of us on the western bank of the Missouri River. This fall, Iowans and Nebraskans need to look beneath the carefully constructed, “regular guy” images of Terry Branstad and Pete Ricketts, and find out where they really stand, and vote accordingly.
OSHA’s recent decision to allow employees to file whistleblower cases online has led to a large increase in filings and has added more delay to claims that were already backlogged before online filing. According to OSHA investigators, this increase in filings hasn’t been met with a proportionate increase in staff. One investigator estimated it takes over 400 days for OSHA to conclude investigating claims.
The delay created by the backlog hurts investigations for many reasons. Witnesses become unavailable, and recollections of events change. Unscrupulous employers also can use the delay to hide or destroy documents and intimidate witnesses.
Of course, employees who feel they have been retaliated against oftentimes have the option of filing a state or local fair employment agency claim on the basis of retaliation. Employees might also have the option of filing for retaliatory discharge without filing a fair-employment claim, as is oftentimes the case if they are fired for filing workers’ compensation. However, this summer the U.S. Supreme Court likely made many types of retaliation cases more difficult to win with their decision in the Nasser case. The court ruled in Nasser that employees claiming retaliation cases under federal Title VII must prove that exercising their rights under Title VII was a “but for” cause of their termination.
But under whistleblower laws under OSHA – such as the Surface Transportation Assistance Act (STAA), which protects interstate truckers, and Dodd-Frank, which protects workers in the financial services industry – an employee must only show that their report of illegal conduct was a contributing factor to their termination.
Employees with a retaliation case should consult with an experienced employment attorney to determine the best forum for any wrongful-termination case.
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.
In Nebraska, being fired for reporting your injury is against the law.
Many Nebraskan workers that have been injured on the job have probably had similar thoughts given today’s economy. However, there are protections for injured workers from getting fired for reporting a workers’ compensation injury. In fact, if you are fired for reporting a work injury, you may be entitled to damages as a result of your termination.
Nebraska is an “at will” employment state. In other words, you may be fired for any reason unless you have an employment contract or you are fired in a discriminatory or retaliatory manner.
You may also be able to recover damages from your employer for being fired for retaliation from your employer.
For example, most people know that you cannot be fired on the basis of: Race, Religion, Ethnicity, Disability, Age, or Gender. If you are fired for these reasons, there are Federal and State laws to allow you to sue your employer.
On the other hand, not everyone knows that you may also be able to recover damages from your employer for being fired for retaliation from your employer. Continue reading