The connection between workplace safety and civil rights is one aspect of the MLK legacy and how that legacy is under attack in Nebraska

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“It was horrible,” said the woman.

One minute she could see a sanitation worker struggling to climb out of the refuse barrel of a city garbage truck. The next minute mechanical forces pulled him back into the cavernous opening. It looked to her as though the man’s raincoat had snagged on the vehicle, foiling his escape attempt. “His body went in first and his legs were hanging out,” said the eyewitness, who had been sitting at her kitchen table in Memphis, Tennessee, when the truck paused in front of her home. Next, she watched the man’s legs vanish as the motion of the truck’s compacting unit swept the worker toward his death. “The big thing just swallowed him,” she reported.

Unbeknownst to Mrs. C. E. Hinson, another man was already trapped inside the vibrating truck body. Before vehicle driver Willie Crain could react, Echol Cole, age 36, and Robert Walker, age 30, would be crushed to death. Nobody ever identified which one came close to escaping.”

The horrific deaths of Cole and Walker on February 1, 1968 set off the Memphis sanitation workers strike where 1,300 mostly African-American public employees struck to protest poor working conditions including the defective garbage truck that crushed Cole and Walker. Martin Luther King Jr. gave his famous “I’ve been to the mountain top” speech in support of the striking sanitation workers in Memphis the night before he was assassinated.

Roughly six years ago I wrote a blog about how Dr. King’s support of the Memphis sanitation worker strike shows how the struggle for civil rights and workplace safety are intertwined.  Most educated people know King’s role in helping to enact anti-discrimination laws. His support for the Memphis sanitation workers likely also helped enact worker safety laws in the 1970s such as the Occupational Safety and Health Act which created OSHA.

Workers’ compensation laws were and still are state laws. But workers’ compensation laws weren’t adequate to protect Echol Cole and Robert Walker from being crushed to death in a trash compactor on the job. Something else has to be done. The creation of OSHA and the movement towards national standards in workers’ compensation were two steps taken the 1970s. Unfortunately whatever halting progress made by these reforms was more or less reversed by tort and workers’ compensation reform starting in the 1980s.

But at least in the judiciary branch, many states borrowed from civil rights laws and allowed workers to sue their employers for retaliating against them for pursuing workers’ compensation benefits. Workers’ compensation retaliation is probably one of the purest combinations of civil rights and workplace safety laws.

Combining workplace safety with civil rights laws in this way lead to decreases in workplace deaths such as the ones that claimed the lives of Echol Cole and Robert Walker.

Nebraska has permitted injured workers to sue their employers for workers’ compensation retaliation since 2003. But, there is a recent case that suggests that allowing workers’ to sue for retaliation and workers’ compensation is the kind of double-recovery not allowed by the so-called exclusive remedy rule of workers’ compensation. Workers’ compensation retaliation cases are allowed for now, but who knows what our state Supreme court may say about them in the near-future.

If Nebraska did adopt this rule, Nebraska would be in a minority of one states who would hold an injured worker has to choose between a retaliation claim and workers’ compensation benefits if they get fired after a work injury. It would be a bad decision for Nebraska workers and probably bad for workers overall as the insurance industry and/or anti-worker state governments try to replicate that decision in other states.

One quote frequently attributed to Dr. King is that “the moral arc of the universe is long but bends towards justice.” Right now the moral arc of the universe is jutting sharply towards injustice – it’s time to push the moral arc back in the direction it belongs.

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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Nebraska workers’ compensation maximum rate increase returns to typical levels for 2023

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Is inflation slowing down? At least when it comes to wage growth in Nebraska, the answer looks to be yes. For injured workers in Nebraska or covered by Nebraska workers compensation, this means maximum benefit rates will rise less in 2023 than in 2022.

The maximum wage benefit rate for workers injured in 2023 who are covered by the Nebraska Workers Compensation Act will rise to $1029 per week from $983.00 in 2022. That is a 4.68 increase down from a t 7.5 percent increase last year.

Under the Neb. Rev. Stat 48-121.01 the maximum benefit rate shall be 100 percent of the state’s average weekly wage as determined by the Nebraska Department of Labor. The Governor has the power to suspend the increase under law, but has never exercised that power.

On an individual level, any worker making more than $80, 263 per week exclusive of overtime premium will be undercompensated by under Nebraska law.

Inflation and loss of earning power evaluations

The annual increase in maximum benefits is always a good reminder for me that while maximum benefits increase in Nebraska -which doesn’t happen in every state- benefits aren’t indexed for inflation.

I’ve written about case law where other states have taken wage inflation into consideration to benefit injured workers. Back injuries and injuries involving multiple members are paid on a so-called loss of earning power basis. Typically in an injury that involves a loss of earning power, treatment and recovery can take 18 months to two years.

But when a worker gets done treating and their loss of earning power determined they are stuck with the wage rate at the time of the injury. But their employer gets the benefit of wage inflation when loss of earning power gets determined. Average wages in Nebraska have increased by 12.58 percent since 2021. So employers can argue that the employee can earn X amount per hour or week when that number should really be decreased for inflation.

Employees also run into evergreen arguments about Nebraska having a labor shortage which usually serves to push down loss of earning power numbers. All the more reason to push the inflation argument.

Inflation arguments and vocational rehabilitation

While knee and shoulder injuries are not paid on a loss of earning power basis, they can be as disabling as back and hip injuries. Particularly for higher-wage workers, vocational rehabilitation can be an option for knee and shoulder injuries. Vocational rehabilitation or re-training is an option when an employee can not return to a job with similar pay. Put another way, it’s a similar test to loss of earning power. So arguments about inflation could help an injured worker gain eligibility for vocational rehabilitation.

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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New NLRB policy sets up conflict with meatpacker employee monitoring plans

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JBS and Tyson Foods both announced recently that they have invested in smartwatch technology to monitor employees in an effort to reduce injuries. These new practices could run afoul a recent proposal by the general counsel to the National Labor Relations Board (NLRB) which would presume such devices would violate employee rights under the National Labor Relations Act. (NLRA)

The NLRA protects the rights of employees to form unions and address working conditions also known as protected concerted activities. The NLRB general counsel believes that monitoring devices could discourage employees from engaging in those protected activities.

Employee monitoring in workers’ compensation

Employee monitoring for the purposes of injury reduction sets up a potential conflict between concerns over workers’ compensation and the rights of workers to organize and maintain dignity in the workplace. Monitoring and tracking injuries is one part of safety and one reason most states and the federal government require employers to track work injuries. Some employers have fought federal rules about injury record keeping.

But keeping data about injuries is only useful if it makes new discoveries and leads to changes in practices. At least when it comes to meatpacking, the workplace safety problem is largely about overuse injuries due to line speed. This is a long understood problem, so I question the utility of forcing meatpacking employees to wear monitoring devices for the purposes of reducing injuries when the solution to reduce injuries is well-known.

Use of employee-monitoring devices in workers compensation

What impact will employee-monitoring devices have in workers compensation? It depends on the state. I think the impacts could be minimal in Nebraska. Nebraska applies a contributing factor standard to causation which is a standard that generally favors employees. While employer data about how an injury could have or could not have happened can be persuasive, that data often doesn’t  take into consideration about specific details about why an employee may be more vulnerable to injury. In a contributing factor analysis, those individual factors are important. In contrast, that data may have more weight in states where causation standards are more favorable to employers.

Can the NLRB effectively regulate employee monitoring?

Though the National Labor Relations Board received a budget increase in the latest spending bill, that was the first time the NLRB had a budget increase since 2014. I believe there are real concerns over the NLRB’s ability to effectively curb employee monitoring because of staffing issues. Employees don’t have the ability to bring private suits, so they need to file administrative claims. I believe any successful claim would have to show how employee monitoring actually impaired the ability of employees to engage in protected activities.

On the upside, a recent NLRB decision could increase penalties against employers who violate the NLRA. Of course, this assumes federal courts will uphold the ability of the NLRB to levy increased penalties against employers.

Despite the possible shortcomings of the NLRB enforcement, I believe that it is good news for workers in Nebraska. Recently, the Nebraska Supreme Court made it more difficult for workers who bring workers’ compensation cases for also bringing state law employment claims. Federal law provides a parallel and unblocked avenue for injured workers in Nebraska to protect their rights.

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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MIT Study: work. comp anti-retaliation laws cut workplace deaths, improve safety

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Study could be helpful in a brewing battle over workers’ compensation retaliation in Nebraska

A study published by the MIT Review of Economics and Statistics shows states that adopted the public policy exceptions to employment at-will for retaliatory claims related to workers compensation claims lead to a reduction in workplace deaths and lead to overall increases in workplace safety.

The good news is that Nebraska started allowing these claims in 2003 in Jackson v. Morris Communications. The bad news is that a recent decision by the Nebraska Supreme Court could foreshadow the end of these claims.

In Dutcher v. Nebraska Department of Corrections, the Nebraska Supreme Court held that the so-called exclusive remedy provision of the Nebraska Workers’ Compensation Act precluded a state employee from bringing a disability discrimination claim under the Nebraska Fair Employment Practices Act if the disability was the result of a work injury.

Dutcher doesn’t address whether a workers’ compensation claim retaliation claim would be barred under exclusive remedy provisions.  The defense bar has pointed to footnote 37 of Dutcher to infer that the Nebraska Supreme Court would address this issue if it was brought to them.

Even if you don’t dig into footnotes, language in Dutcher talking about the “proliferation of failure to accommodate litigation over work injuries” stands in stark contrast to the Nebraska Supreme Court rejecting similar proliferation of litigation arguments in Trosper v. Bag n’ Save. Dutcher would also run counter to a reported federal decision, Clark v. Sarpy County, which cited Trosper to find that failure to reasonably accommodate a work injury would be workers’ compensation retaliation under Nebraska law.

In my mind, the MIT study would be a great addition to any amicus brief in opposition to a management-side challenge to Jackson v. Morris Communications.

Further I also believe the plain language of the Nebraska Fair Employment Practices Act allows for workers’ compensation retaliation.

Neb. Rev. Stat. §48-1114(1)(d) prohibits retaliation for inquiring about, discussing or disclosing information about wages, benefits or other compensation. In my mind this means workers’ compensation for two reasons:

  1. Neb. Rev. Stat. 48-1229(6) has a very broad definition of wages that includes things like health and disability insurance. While it doesn’t include workers’ compensation, if you adopt 48-1229(6) definition of wages for Neb. Rev. Stat. 48-1114(1)(d), workers’ compensation should count as “other compensation.” I would argue that workers’ compensation which comprises both health and disability insurance is closely related enough to wages as defined by Nebraska law to count as “other compensation.”
  2. If an employee is denied workers’ compensation benefits for an injury, they will often need to fall back on health insurance and/or disability insurance. Even if a workers compensation claim isn’t rejected or accepted right away, there is still a question, an inquiry if you will, about which employee benefit they should be using to cover the expenses of the injury.

Bluntly, the plain language of 48-1114(1)(d) indicates that workers’ compensation is covered under 48-1114(d)1.

NFEPA arguably also applies if an employee reports a work injury in connection with a safety condition that they reasonably violated some law. If supporters of workers’ compensation retaliation are looking to bolster the public policy arguments in support of workers’ compensation retaliation, they can find support within the NFEPA.

Finally, while courts are starting to narrow what constitutes a protected activity in retaliation cases, they aren’t wholesale throwing out retaliation cases as a cause of action. The MIT study shows the wisdom of the public policy exception for workers’ compensation retaliation in Nebraska and in the rest of the country.

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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Bah-humbug to forced volunteer work

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Employers are taking advantage of a gap in Nebraska case law to coerce injury employees into coercive light duty assignments

As temperatures and wind-chills plummeted, the familiar sounds of holiday bells rung out over parts of Lincoln.

But the tradition of holiday bell ringing to solicit donations for the Salvation Army has been marred by insurers/employers who see bell-ringing and other volunteer work as ways to force injured workers back to work.

These arrangements usually involve the employers paying their injured worker a salary, instead of temporary total disability, to work at or for a non-profit. This arrangement creates all sorts of problems for employees such as who they report to for work? There may also be language barriers when non-English-speakers injured at larger employers work for small non-profits without interpreters.

So why can employers get a way with just farming out their injured employees for volunteer assignments. After all, the Nebraska Workers Compensation Court regulates vocational rehabilitation programs through Neb. Rev. Stat. 48-162.01.

48-162.01 uses what amounts to a check list when it comes to vocational rehabilitation for workers. On top of the list is an employee going back to their old job to the bottom of the list – or the final step – is enrollment in a training program. Somewhere in the middle are new job with the same employer or new job with new employer.

Voluntold charity work is arguably neither a new job with a new employer or a new job with the same employer. The employer is still paying the employee, but they are working for someone else. If this was a permanent placement, it would be problematic to say the least.

Green v. Driver’s Management: Creating the legal gap for voluntold light duty?

I believe employers are exploiting a gap in Nebraska workers’ compensation law. Nebraska case law in Green v. Driver’s Management holds that an employee can’t get vocational benefits without permanent impairment or permanent restrictions. Arguably, if an employee is not at MMI, then the vocational rehabilitation rules don’t apply.

So how to employee’s answer those arguments.  First, the court will approve temporary loss of earning power evaluations. These involve vocational counselors as described by the 48-162.01 and court rules.  This practice is justified by the proposition that disability, whether it is temporary or permanent, can still determined by loss of earning power.

Secondly, the Green case holds that vocational benefits aren’t awardable without restrictions or impairments. If an injured worker is getting shifted into a voluntold job, this usually means they have some restrictions. If you concede that disability can mean the same thing whether it is permanent or temporary, then an employer shouldn’t be able to get around the vocational rehabilitation statute just because an employee is not at MMI?

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 Nebraska women be forced to pick between work comp or discrimination laws for work-related miscarriages?

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Recent Nebraska case law may force pregnant workers to chose between filing a discrimination or workers’ compensation case for pregnancy-related injuries.

Paid maternity leave is nearly a luxury in the United States – particularly for lower-wage hourly workers in the service industry. But pregnant workers in Nebraska have some protections in the way of anti-discrimination laws and workers’ compensation laws.

But unfortunately, pregnant workers in Nebraska may have to pick between discrimination and workers’ compensation laws if work causes a miscarriage or complicates a pregnancy.

Filing a pregnancy discrimination claim if the discrimination causes a physical injury? Maybe not.

It would stand to reason that if an employer fails to accommodate a pregnant worker by giving them help with manual labor and that manual labor leads to a miscarriage or other complications, you would have both a pregnancy discrimination case and a workers’ compensation case.

The Nebraska Supreme Court might beg to differ.

In Dutcher v. Nebraska Department of Correctional Services, the Nebraska Supreme Court held that so-called exclusive remedy provision of the Nebraska Workers’ Compensation Case prevented an employee from suing their employer under the Nebraska Fair Employment Practices Act for being fired due to a disability that was caused by her work injury.

Dutcher is a bad employee’s case and it will get a full analysis soon. But one implication of Dutcher would be that an employer could argue that an employee is impermissibly trying to “double-dip” if they alleged pregnancy discrimination for a failure to accommodate that also caused a work injury where they collected workers’ compensation benefits.

Arguably, pregnancy is distinguishable in that pregnancy would not be a condition that be covered by workers’ compensation in Nebraska. Pregnancy isn’t caused by a work injury. Would an employer be forced to cover a pregnancy under workers’ compensation for a pregnancy from consensual sex on the job? Would an employee who was raped on the job be forced into the exclusive remedy of workers’ compensation if they were impregnated? The answer should be no and no. But I think Dutcher could quite possibly limit the protections of pregnant workers who get injured on the job when an employer fails to accommodate their pregnancy.

Pregnancy discrimination in Nebraska

Nebraska changed the Nebraska Fair Employment Practices Act to ensure employers of 15 or more to provided reasonable accommodations for pregnancy and pregnancy-related medical conditions. I would argue Nebraska law could provide more of a duty for covered employers to accommodate an employee with a disability. Nebraska law spells out specific reasonable accommodations for pregnant workers such as breaks, help with manual labor and temporary light duty jobs that aren’t generally required for disabled employees.

Damages under the Nebraska Fair Employment Practices Act can include back pay, front pay, attorney fees and compensatory damages. In plain language compensatory damages means pay for pain and suffering and emotional distress. Those pain and suffering damages aren’t available under workers’ compensation.

But what about employee’s working for employers with fewer than 15 employees? If they are employed in Omaha or Lincoln they can file a charge with a municipal human rights agency for failure to accommodate a pregnancy.  

If the failure to accommodate pregnancy causes a miscarriage or otherwise forces a pregnant worker to seek medical treatment, they can also file a workers’ compensation claim in Nebraska.

Workers’ compensation for pregnancy in Nebraska

I think miscarriages or other complications to pregnancy would be covered by workers’ compensation in Nebraska. I think this for two reasons: 1) Nebraska workers compensation covers work injuries from overuse or repetitive use and 2) Nebraska has contributing factor causation which means work can combine with other factors to cause an injury and still be covered by workers’ compensation.

All employees are covered by workers’ compensation in Nebraska from the first day of their employment. Workers’ compensation also covers all medical bills from a work injury. So even if an employee isn’t covered by the Nebraska Fair Employment Practices Act,  isn’t covered by  the Family Medical Leave Act and/or doesn’t have health insurance, workers’ compensation should cover any medical expenses related to a physical injury from an employer unreasonably forcing a pregnant worker to work.

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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Louisiana as model of coverage of mental-mental injuries in Nebraska workers’ compensation?

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Summary: Nebraska would take a step in right direction in protecting vulnerable retail and fast food workers by providing some baseline workers compensation coverage for all workers for purely mental injuries. Louisiana is one model Nebraska could use.

Convenience store clerks and fast food workers are routinely victimized in armed robberies. But depending on where they live, they may not have workers’ compensation for the mental trauma caused by being subjected to armed threats.

In workers’ compensation lingo these injuries are referred to as “mental-mental” injuries – mental trauma without a physical injury. If you read this blog, you know retail and fast food workers lack those protections in Nebraska.

But thanks to a social media interaction with a Louisiana workers’ compensation lawyer, Jenny Barber Valois, I found out that retail and fast food workers in Louisiana can receive workers’ compensation for mental-mental injuries that arise out of violent armed robberies.

The main advantage of Louisiana “mental-mental” law over Nebraska law, is that Louisiana law applies to all workers covered by their act. In Nebraska, only first responders can collect mental-mental benefits. Both Nebraska and Louisiana require workers to be subjected to unusual and extraordinary stressors on the job to be eligible for workers’ compensation benefits.

But Nebraska first responders would give up a lot of protections if Louisiana mental-mental law applied to them.

Louisiana law requires proof of mental-mental injuries by clear and convincing evidence, where Nebraska law only requires first responders prove their injuries by a preponderance of the evidence. Louisiana only allows psychiatrists or psychologists to testify as to causation of mental trauma injuries.

This is a tough standard because this excludes general practitioners who often provide mental-health care.  At least in rural Nebraska, this would be an even harder standard to meet due to the shortage of mental health providers.

In contrast, Nebraska law allows first responders to prove their cases with “mental health professionals” which allows general practice doctors and most counselors to help prove mental-mental injuries. Counselors are not defined as “Rule 10” experts in the Nebraska Workers’ Compensation Court.  This means their testimony could not be used to prove causation of a physical-mental injury for a non-first responder.

In short, Nebraska has great mental-mental workers’ compensation laws for first responders but non-existent protections for everyone else – including vulnerable workers like convenience store clerks and fast food workers. Louisiana at least provides a baseline of protection from mental-mental injuries to all workers, even their law raises difficult substantive and practical barriers to getting mental-mental benefits. I believe it would be a step in the right direction for Nebraska to adopt Louisiana’s baseline of protection for mental-mental injuries for non-first responders. Something is better than nothing.

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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New DOL rule on employee classification will have minimal impact on Nebraska law

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Last week the United States Department of Labor announced it was changing its rule about who was an independent contractor and who was an employee.

This rule, if implemented, is newsworthy because it defines who the Department of Labor thinks is entitled to protections under laws such as the Fair Labor Standards Act which entitles employees to minimum wage and overtime pay protections. If enacted it may lead to a broader definition of employee less favorable to so-called gig economy companies such as Uber. This could give the Department some leverage of employers if they decide to prosecute wage claims against employers.

But the rule change is a different story for individual claimants.

Let’s put aside the fact that federal courts may not accept the Department’s interpretation. Let’s also put aside the even management-side bloggers like Eric Meyer don’t think the rule change changes the standard all that much.

But even putting aside those issues, the proposed changes will have little to no impact on state laws. As I’ve been pointing out for years, states make their own determinations about who is an employee and who is a contractor and who is protected under their laws regardless of federal law.

For example, Nebraska’s minimum wage is $9.00 per hour and instead of the federal minimum rate of $7.25 per hour. Nebraska also lacks an outside sales exemption like federal law which makes it easier for sales workers to bring wage claims.

States can also apply different sets of standards about who is an employee for the purpose different laws. Under Nebraska Employment Security Act, employees are covered under the more employee-friendly ABC Test for the purposes of unemployment benefits. But in order to get workers’ compensation benefits an employee show they are an employee under a more restrictive ten factor test.

But commentators like Meyer are correct in arguing that the different standards of who is an employee and who is a contractor often overlap. I would also assert that courts will find ways to bypass the ABC test.

Nebraska law is an example of how the tests overlap and how courts ignore ABC. In Larson v. Hometown Communications (1995), the Nebraska Supreme Court applied the ten factor test to hold a 10 year-old newspaper carrier hurt on the job was an employee for the purposes of the Nebraska Workers Compensation Act.

But the court came to a different conclusion on a similar employment arrangement in Dernier v. Omaha-World Herald. (1997) In that case, the Supreme Court bypassed the ABC test under Neb. Rev. Stat. §48-604(5) then applied the ten factor case to hold Dernier was a contractor for the purposes of unemployment benefits.

Please don’t take this post to mean that I think the DOL’s rule change is meaningless. Some state’s may follow what the feds do. Some federal judges may be willing to use the new federal rule is a thumb on the scale in a close case. But from my experience, at least at a state law level, state court judges are going to apply controlling state law with little or no deference given to federal rules that interpret parallel federal laws.

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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