I suspect this challenge may weaken protections for whistleblower employees who report their employers to OSHA for not following OSHA rules on COVID vaccination and testing. Here is the why and how I think state challenges to federal rules on vaccination and testing could undercut whistleblower protections in Nebraska.
But in Nebraska, employers have a right to sue their employers for conduct that violates state or federal law under Neb. Rev. Stat. 48-1114.
In a typical retaliation case an employee has to show that 1) they engaged in a protected activity 2) their employer took some adverse action against them and 3) there is a causal link between the protected activity and the adverse action
At least under current Nebraska law, employees just need to have an honest or good faith belief that their employers conduct violates the law to have their report of unlawful activity to be a protected activity.
The potential problem for Nebraska employees seeking protections for reporting their employers to OSHA for not following the vaccine rule, is that a state law challenge to the rule blurs the lines whether the conduct they are opposing is plausibly unlawful.
Employees don’t have protections for reporting what courts deems as bad acts that aren’t illegal. Furthermore, courts in Nebraska hold that they aren’t going to second guess personnel decisions barring some evidence of discriminatory intent under the employment at-will doctrine. So, not surprisingly, employers typically fight the issue of whether their employee was engaging in a protected activity at all. Courts will sometimes agree with employers on this argument
I believe an employee can still meet a good faith standard by arguing they were opposing conduct that is unlawful under federal law. But a state law challenge to a federal rule on COVID vaccination and testing could narrow an already narrow path to a successful retaliation case for a whistleblower in Nebraska.
Injured workers covered by the Nebraska Workers’ Compensation Act can’t sue their insurers/claims administrators for bad faith handling and denials of workers’ compensation claims. Injured workers are stuck with the fee and penalty provisions under Neb. Rev. Stat. 48-125 which one former judge referred to as an ineffectual “yipping porch dog.”
But I participated in some discussion with other Nebraska lawyers about another way to discourage bad faith handling of workers’ compensation claims: Neb. Rev. Stat. 48-146.02.
Neb. Rev. Stat. 48-146.02
48-146.02 allows a three judge panel of the Nebraska Workers Compensation Court to revoke self-insurance for privileges for employers or recommend to the Department of Insurance that they revoke the ability of a workers’ compensation insurer to do business in Nebraska. The three judge panel can act if they hold a hearing and find that an insurer/claims administrator fails to comply with their obligations under the Nebraska Workers’ Compensation with such frequency that it finds it to be a general business practice.
But even if a party succeeds in a claim there is no mention of any way for a successful claimant to be paid anything in the way of a penalty, attorney fees or a liquidated damage. The language of 48-146.02 would also indicate that a case under 48-146.02 would probably have to involve multiple parties alleging similar conduct by an insurer or claims administrator.
Could a group of plaintiffs bring what amounts to collective or class action case in the Nebraska Workers’ Compensation Court against an insurer for bad faith under 48-146.02? Yes, I think there is a path.
Neb. Rev. Stat. 48-162.03 give parties broad ability to file motions with the court. The language of 48-146.02 refers to making a motion to a three judge panel rather than filing a petition.
NWCC Rule 3(k) allows the court to consolidate similar causes of action. So sure, I think a group of plaintiffs could bring a case under 48-146.02, but there would be no financial benefit to the parties bringing those claims under current law.
48-146.02 allows the Nebraska Workers’ Compensation Court administrator to request the Attorney General file a motion with a three Judge panel. But that means a group of wronged plaintiff’s need to persuade the 1) the court administrator and 2) the Attorney General to pursue the case just to get a hearing.
In my mind, a simple bad faith tort action filed by an individual plaintiff wronged by an insurer or claims administrator is a more effective deterrent against bad faith insurance practices in workers’ compensation than either a multi-layered administrative process or what amounts to a pro bono class or collective action claim.
The 10th Circuit Court of Appeals reversed a finding made by a Colorado federal court that Nelnet employees in Omaha, Lincoln and Aurora, Colorado were not entitled to pay for the time they spent booting up their computer.
In a relatively simple terms, the trial court found that Nelnet call center workers were performing work for the purposes of the Fair Labor Standards Act when they booted up their computers and computer programs before shift. But the time they spent was 1) too hard to measure for the company and 2) too small an amount of time to count as a matter of law.
In the case, the court estimated workers lost $.48 per shift for time spent waiting for a computer and programs to boot up.
The 10th Circuit Court of Appeals reversed the decision and gave a good explanation of how the de minimis exception works. In order for the de minimis exception to apply there is a balancing test that takes into account three factors 1) ability to measure the time 2) amount of money lost and 3) whether the time not paid was part of regular duties.
It was undisputed that the time booting up time was part of regular duties. This was important for the employees. The appellate court found the defendant couldn’t argue that keeping track of time was too difficult when they had estimated it for the purpose of the case.
The court also found that the losses for the employees were not negligible. The court noted that $.48 per shift works out to $125 per year which is a meaningful amount of money for employees who were earning $13.50 per hour.
One upside to the pandemic is that courts seem more likely to order video or remote depositions. This is a meaningful win for workers like truckers who are forced to file claims for workers compensation in distant states.
Free to work where you want, but not free to claim workers compensation where you want
Over the road drivers are stuck in a legal and constitutional conundrum when that are injured at work. Under the privileges and immunities clause, Article IV, Section 2 of the United States Constitution Americans can live and work anywhere in the United States. One part of American nationhood is the economic union among the states.
What this means is that workers who get hired by a company in a distant state or are injured in a distant state have to pursue claims in a distant state.
Practical effects of travel costs on workers compensation claimants
A worker with a workers compensation claim in Nebraska is looking at a minimum of $600 in travel costs and a two day trip if they are coming from either coast to Nebraska. That assumes you are close to a major airport.
It seems burdensome, expensive and unconstitutional to require a blue collar worker who might not be receiving workers compensation benefits to make this treck for a two hour deposition.
But pre-pandemic Nebraska courts routinely required this trip. But with the use of remote technology like Zoom, courts are allowing plaintiffs to appear remotely for depositions. A few weeks ago I had a federal magistrate judge allow a client from Georgia appear remotely for a deposition in a personal injury case here in Nebraska. Many judges also like Zoom for routine hearings.
In short, as Judges get more familiar with remote hearings, they might be more inclined to listen to arguments about why forcing in person depositions for out of state plaintiffs is unfair, unreasonable and even unconstitutional. My guess is that there will be a growing body of case law that supports these arguments.
Anyone who has seen Office Space is probably familiar with this quote. I think the quote applies to big corporate Human Resources (HR) departments that outsource Family Medical Leave Act (FMLA) eligibility determinations to private disability insurers.
The way some big employers determine FMLA eligibility flies in the face of this purpose. If you wanted to design a system to fire workers with health conditions, I’m not sure the craftiest HR and legal minds representing management could come up with a better way to do so than outsourced leave administration.
Why outsourcing leave decisions to private disability insurers is a bad idea
FMLA is unpaid leave. Many employers use short-term disability as paid leave. But if you need to be off-work to get short-term disability then the decision about eligibility for FMLA and disability are one in the same. But if a short-term disability insurer is the decision maker, they have a reason to deny claims because paying claims costs money. So in essence, an employees right to unpaid leave is premised on an insurance companies decision about paying disability benefits.
That this is a terrible idea should be apparent to everyone to knows how insurance companies work.
And seeing exactly how this process harms workers is infuriating.
FMLA issues often arise when a worker gets hurt on the job. So if a worker brings in a doctors note with work restrictions that an employer can’t accommodate, you would think it would be as simple as HR looking at payroll records to see if an employee is eligible for FMLA.
Plaintiff’s lawyers like me make these determinations all the time in a few minutes when prospective clients call in about claims. I fail to understand how HR managers at large worksites for major companies can’t make the same decisions with the resources they have available.
But that’s not how things work with many major employers.
How outsourced leave works
So instead of the process I described in two paragraphs above. Outsourced leave decisions require the employer and an outside entity to communicate about an employee’s leave eligibility. It also requires an employee, who typically doesn’t have a lot of experience with paperwork, to send documents to their employer and to the leave administrator. Often times these documents are sent by medical offices. Sounds complicated, lots of room for error. Employers have lots of reasons to claim they didn’t get documents or blame employees for not properly communicating.
But it can get even more complicated when some company nurse is hassling an employee or their doctors about a return to work before they are ready.
Ongoing complications due to remote work by insurers during the pandemic don’t help out either.
All of these complications need to viewed in the context of the disability insurer/leave decider being fundamentally adverse to the workers asking for disability insurance and leave.
Sure, an experienced lawyer would know how to navigate this web. But when it comes to leave applications, blue collar workers are often thrown into this hostile maze without assistance or even knowing where to turn for help.
Why outsourced leave?
Outsourced leave is usually administered in conjunction with short and long-term disability insurance. Employers like these policies, in part, because they are good ways to shift the cost of work injuries away from workers compensation. I think this particularly true for injured workers who may have aggravated an old injury, had an overuse injury or didn’t report injuries immediately. These workers are often mislead by HR and employee health types that workers compensation coverage isn’t available in those situations.
Of course, pushing employees who are hurt on the job to apply for short or long-term disability is just pouring glue on the already sticky situation described above. An application for short-term disability can muddy a claim for workers compensation and vice-versa. A private disability carrier may claim a right to repayment for workers compensation benefits. A private disability company may also have policies that in effect require their beneficiaries to apply for Social Security Disability Insurance. This can complicate a workers compensation claim as well.
Good communication with your employer is common sense and it can preserve your rights to bring claims against bad employers even if you quit your job
The forced quit or constructive discharge case
The law gives employees the right to sue employers for forced quits or constructive discharge, but these cases are even harder to win that typical wrongful termination cases.
In order to win a constructive discharge case, the employee needs to show an intolerable work environment and that they made reasonable efforts to maintain employment. From what I see, even if employees can show an intolerable work environment, which is very difficult, they get tripped up by the reasonable efforts to maintain employment requirement.
So, how does an employee show they made reasonable efforts to maintain employment?
One good way to look at what courts consider to be an acceptable level of attempted dispute resolution is to look at the requirements courts have for lawyers involved in disputes about pre-trial investigation or discovery. Before a court will get involved in one of these disputes, they need to see evidence that the lawyers had real discussions about the dispute. Obviously courts want to see documentation in the forms of emails, but they also generally want to see evidence that the parties met or spoke over the phone about the problems.
I think courts apply a similar standard when judging whether an employee made reasonable efforts to maintain their employment. In the era of smart phones, I think courts have an expectation that they will see text messages and or emails documenting discussions with employers.
But courts also know that people can miss emails or texts, so they want to see evidence of phone or an in-person communication. They want to see written and verbal communication attempts. Lawyers informally call this the belt-and-suspender approach.
President Biden stated last week that the Occupational Health and Safety Administration (OSHA) will implement a rule that employers with more than 100 employees will be subject to fines if they do not require COVID vaccinations or test employees for COVID on a weekly basis.
The new mandate raises many issues about workplace law that I touch on below:
Workers’ compensation: Employees who are injured through employer-required testing or vaccination would clearly be covered by workers’ compensation. In order for an injury to be covered by workers’ compensation, an employee needs to be doing something in the course of their employment duties for the benefit of their employer.
Before mandated vaccinations and testing, maybe employers could argue that COVID testing and vaccinations injuries weren’t covered by workers compensation. But mandates firmly shut the door on what I think is a semi-specious argument.
Whistleblower: OSHA will likely rely on whistleblowers to enforce the rule. While there is no general federal right for an employee to sue their employer for retaliating against them for not complying with the mandate, Nebraska has a general whistleblower law that gives employees that right. An employee in Nebraska who was retaliated against for reporting non-compliance with the vaccine mandate has 300 days to either file a charge with the Nebraska Equal Opportunity Commission or file directly in state court.
Workers in certain industries could also have a federal right to sue their employer for not enforcing vaccine and testing requirements.
Wage and hour law: The new mandate gives employees paid leave for vaccination side effects. The Fair Labor Standards Act (FLSA) also requires that employers pay employees for time spent on employer-ordered medical care. I anticipate some litigation arising out of this law – particularly if employers force employees to get vaccinated or tested outside of regular work hours.
While most comment on the decision seemed to criticize former EPA Administrator Scott Pruitt, who no doubt deserves the criticsm, the Ninth Circuit probably would not have ruled the way it did if the EPA under the Obama administration had not dithered in addressing the risks of chlorpyrifos.
Despite the findings of EPA scientists about the risks of chlorpyrifos in agricultural use the EPA took no action. Advocates for banning the chemical filed what amounted to a motion to compel against the EPA in 2014 which finally lead to a proposed rule in late 2015. Advocates filed another motion to implement the ban that the EPA fought in court.
Just when the EPA was ready to implement the rule, the Trump administration came in, under Scott Pruitt and denied the petition to ban chlorpyrifos. Farm worker advocates along with some state attorney generals filed an appeal in court The EPA, making no attempt to argue the merits of the claim, argued that the petitioners hadn’t “exhausted administrative remedies” or followed the proper procedure before litigating the case.
Federal District Judge Jed Rakoff, who was essentially filling in as an appellate judge in the Ninth Circuit, wisely rejected the EPA’s argument. He pointed out that allowing the EPA to argue the petitioners had not exhausted administrative agencies would just encourage the EPA to drag out rulings over 10 years and the course of three Presidential administrations.
A dissenting opinion cited to a Second Circuit Court of Appeals that held otherwise, which means the legal issue over how the EPA handles petitions to ban chemicals could be decided by the Supreme Court in the near future.
Reporting by Mike Elk of Payday Report raised concerns during the Obama administration about how the chemical industry was weakening and delaying EPA rule making on chemicals and workplace safety. The opinion by Judge Rakoff describes how the Obama administration lollygagged in addressing the risks of chlorpyrifos despite two scientific findings by the agency about the danger of the chemical. There is a disturbing irony in the Obama administrations failure to protect farmworkers from chlorpyrifos. Obama’s slogan during his 2008 campaign “Yes We Can” was a translation of the phrase “Si Se Puede” used by farm worker union organizer Cesar Chavez. Obama said early in his administration that “Elections have consequences.” One consequence of his administration was that a dangerous chemical known to be harmful to farmworkers and their families remained in use through the eight years of his administration.
As mentioned earlier, a state court jury in California found that the herbicide Round Up caused cancer for a California man and entered a $289 million dollar judgment against Round Up manufacturer, Monsanto. In contrast to the plodding, ineffective and lobbyist-driven administrative process that went on for for over a decade without resolution over chlorpyrifos, a citizen was able to get justice against a major corporation from a jury in state court. The contrast between the ongoing chlorpyrifos debacle and the verdict in the Round Up case should re-enforce the importance of the Seventh Amendment right to trial by jury.