Workers’ Memorial Day…and the Decline in Worker Safety

Posted on by

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm. Workers Memorial Day is on Sunday. This post describes in gruesome detail how the Trump Administration has moved to undercut workplace safety.

Last week (April 28) was Workers’ Memorial Day, remembering and honoring all those workers who have been injured or killed in the workplace.  While we’ve come a long way in our country toward protecting workers, current politics and politicians are actively working to undermine a century of progress.

I encourage everyone to read the following informative post on the current statistics of workplace injuries and the effort to encourage less protection for workers: The Health and Safety of America’s Workers Is At Risk.  

The author, Kathleen Rest, provided a detailed list of the Trump administrations intention on “rolling back public protections and prioritizing industry over the public interest”:

  • Right off the bat, the president issued his two-for-one executive order requiring agencies to rescind two regulations for each new one they propose. So, to enact new worker health and safety protections, two others would have to go.

  • OSHA has delayed implementation or enforcement of several worker protection rules that address serious health risks and were years in the making—i.e., silica, the cause of an irreversible and debilitating lung disease, and beryllium, a carcinogen and also the source of a devastating lung disease.

  • OSHA has left five advisory and committees to languish—the Advisory Committee on Construction Safety and Health; the Whistleblower Protection Advisory Committee; the National Advisory Committee on Occupational Safety and Health; the Federal Advisory Council; and the Maritime Advisory Committee—thus depriving the agency of advice from independent experts and key stakeholders. Earlier this week, a number of groups, including the Union of Concerned Scientists, sent a letter to Secretary of Labor Acosta asking him to stop sidelining the advice of independent experts.

  • President Trump signed a resolution that permanently removed the ability of OSHA to cite employers with a pattern of record keeping violations related to workplace injuries and illnesses. Yes, permanently, because it was passed under the Congressional Review Act. And Secretary Acosta recently seemed hesitant to commit not to rescind OSHA’s rule to improve electronic recordkeeping of work-related injuries and illnesses.

  • Having failed in efforts to cut some worker health and safety protections and research in his FY18 budget proposal, the president is going at it again with his FY19 proposal. He is calling for the elimination of the U.S. Chemical Safety and Hazard Investigation Board and OSHA’s worker safety and health training program, Susan Harwood Training Grants. There is, however, a tiny bit of good news for workers in President Trump’s proposed budget for OSHA; it includes a small (2.4 percent) increase for enforcement, as well as a 4.2 percent increase for compliance assistance. Of note, employers much prefer compliance assistance over enforcement activities.

  • The president’s budget also proposes to cut research by 40 percent at the National Institute for Occupational Safety and Health (NIOSH)—the only federal agency solely devoted to research on worker health and safety—and eliminate the agency’s educational research centers, agriculture, forestry and fishing research centers and external research programs.

  • He has also proposed taking NIOSH out of CDC, perhaps combining it later with various parts of the National Institutes of Health. Never mind that NIOSH was established by statute as an entity by the Occupational Safety and Health Act of 1970.

  • The Mine Safety and Health Administration (MSHA) has also jumped on the regulatory reform bandwagon. The agency has indicated its intent to review and evaluate its regulations protecting coal miners from black lung disease. This at a time when NIOSH has identified the largest cluster of black lung disease ever reported.

  • EPA actions are also putting workers at risk. Late last year, the EPA announced that it will revise crucial protections for more than two million farmworkers and pesticide applicators, including reconsidering the minimum age requirements for applying these toxic chemicals. Earlier in the year, the agency overruled its own scientists when it decided not to ban the pesticide chlorpyrifos, thus perpetuating its serious risk to farmworkers, not to mention their children and users of rural drinking water. And the agency has delayed implementation of its Risk Management Plan rule to prevent chemical accidents for nearly two years.

  • The Department of Interior is following up on an order from President Trump to re-evaluate regulations put into place by the Obama administration in the aftermath of the Deepwater Horizon accident in 2010, which killed 11 offshore workers and created the largest marine oil spill in United States’ drilling history.

  • And then there’s a new proposal at the U.S. Department of Agriculture that seeks to privatize the pork inspection system and remove any maximum limits on line speeds in pig slaughter plants. Meat packing workers in pork slaughter houses already have higher injury and illness rates than the national average. Increasing line speeds only increases their risk.


Scary times.  I fear we may be remembering more and more injured workers moving forward.

The offices of Rehm, Bennett & Moore, 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.

This entry was posted in safety rollback, Trump, work injuries, Worker safety and tagged , .

When active shooter drills lead to workplace injuries

Posted on by

The United States has one of the highest rates of gun violence in the developed world. Unfortunately the workplace is no sanctuary from this violence.

Many workplaces, schools in particular, participate in active shooter drills. But an active shooter drill at a school in Indiana lead to more workplace violence.

As reported in Splinter, teachers in Monticello, Indiana were shot “execution style” with pellet guns by sheriff’s deputies participating in a mass shooter drill. Indiana teachers have helped introduce legislation outlawing that practice.

The practice of shooting people with pellet guns during active shooter drills raises a few legal issues. True to the title of this blog, any physical injury caused by being shot with a pellet gun during a workplace active shooter drill would be covered under workers’ compensation. At least in Nebraska any mental injury stemming from the phyiscal injury should be covered under workers’ compensation as well.

Workers’ compensation pays limited benefits regardless of fault of the employee or employer. Workers’ compensation does not pay for pain and suffering or generally punish employers for bad conduct. But an employee can bring a so-called third-party case if the conduct of someone other than the employer caused the injury. In the Indiana case, it was a county sheriff who shot the teachers with pellet guns.

So, the injured teachers and school workers could bring a case for intentional assault or possibly even a civil rights case against the sheriff’s department. Of course any state actor responsible for an injury has some protections under sovereign immunity for their misconduct. (Sovereign immunity usually is not an issue in workers’ compensation)

Besides being compensated for physical and mental injuries, an employee who is intentionally injured in an active shooter drill may have employment law concerns as well. In my experience, an employer dumb enough to let their employees be assaulted would be bird-brained enough to retaliate against an employee who made a workers’ compensation claim for the injury. That same employer would probably also retaliate against an employee who reported safety concerns to an outside agency like OSHA.

In a public school setting, the school would have some defenses in an employment law case via sovereign immunity. But public schools are generally unionized and unions can be a great resource for employees who are intentionally assaulted on the job.  As mentioned above, the teachers union in Indiana supported legislation to ban the practice of shooting people with pellet guns during active shooter drills. Solid union representation can also help protect employees who speak out against unsafe practices in the workplace.

The offices of Rehm, Bennett & Moore, 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.

This entry was posted in civil rights, Nebraska, third party, Workers' Compensation and tagged .

Something old, something new: The 737 Max and the future of workplace safety

Posted on by

The aftermath of the Ethiopian Air 737 Max crash that killed 157 people

Even as workplace injuries decline, new threats to workplace safety are emerging. The recent crash of an Ethiopian Air 737 Max highlighted on emerging safety risk.

Safety experts attributed the crash to the 737 Max to using modern software to control machinery that was designed as long as 50 years ago. Experts believe that so-called control software works much better when it is designed together with the machinery it is meant to control.

But purchasing new machinery is expensive for business. (Or it cuts into returns for wealthy investors.) Control software is seen as a cost-saving hack.

In the case of the Ethiopian Air crash 157 crew members and passengers lost their lives. Thankfully not all accidents from using 2019 software to control 1969 machinery will be as fatal as the Ethiopian Air crash. But nonetheless accidents from industrial machinery can be gruesome and disabling even if they don’t make international news.

Obviously injuries caused by this slapdash industrial technology would be covered under workers’ compensation laws. But other laws would certainly come into play as well.

Workers who report problems with unsafe technology can bring whistleblower claims. Nebraska has broad protections for employees who report unsafe working conditions.  A complaint about an unsafe working condition can be a report of a work injury in many circumstances. Employees reporting concerns over the design of technology may also have protections under federal law. The United States Senate has opened up an investigation of the 737 Max based on issues raised by a whistleblower. Complaints about machine design could be covered under the various whislteblower laws administered by the Occupational Safety and Health Administration. Employees bring a claim under the act have an easier evidentiary standard to meet than in other forms of retaliation cases.

Employees injured on the job by defective machinery can also bring a negligence case against the manufacturer of the equipment. This so-called third party case could be worth substantially more than a workers compensation claim. But in a case involving modern software controlling old machinery, there could be a dispute over who was at fault. Producers of older technology may also be able to defend negligence claims based on a statute of repose defense which can limit claims for injuries that have yet to happen.

The offices of Rehm, Bennett & Moore, 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.

This entry was posted in employment law, Nebraska, third party, Whistleblower, Workers Compensation and tagged , .

Four rules of thumb about disability accommodation and public employees

Posted on by

Public employees protesting in Wisconsin in 2011

A few weeks ago Brody posted about the story of a paramedic who ultimately did receive workers’ compensation benefits for a solely mental injury. I agree with Brody that it’s great that first responders can receive workers’ compensation benefits for mental distress on the job not related to a physical injury.

When I read Brody’s post, it reminded me of few informal rules or principles I’ve learned from helping injured workers with their employment law issues for the last 14 years.

Government employers can be difficult. I have a few theories why. First of all, they can invoke sovereign immunity as a defense to any potential unlawful acts. Secondly most of them are self-insured which means any claim made by an employee comes out of tax funds rather than from an insurance policy. Finally since, government employees are entitled to some procedural due process before a termination, government employers go out of their way to build a case for termination. This case building by management can take a terrible mental toll on employees who are being targeted for termination.

Unions are good: Most union contracts require that an employer just cause for termination. That’s usually true for public sector employees as well. But union representation usually means that an employee can receive a substantively fair process when facing difficulties at work. Union officials often know about past practices and can effectively deal with bad behavior by an employer short of attorney involvement. Union contracts often include arbitration rights to dispute a termination, but those rights are often meaningless without an attorney. Unions often foot the bill for an attorney to represent an employee in arbitration.

Disability accommodation is often a bureaucratic nightmare: Under the ADA, employee and employer and supposed to meet in an informal, interactive process to determine how to accommodate disability. What often times happens is that management decides to second guess doctors’ restrictions or ask for endless clarifications. The process becomes adversarial and driven by paperwork.

Mental disabilities aren’t treated the same as physical disabilities: Mental disabilities can present somewhat of a challenge as they are more difficult to measure than physical disabilities. It’s difficult to manage what can’t be measured, but accommodations for a mental injury can be as simple as accommodations for a physical injury if an employee and employer sit down in good faith.

I also believe that employees who suffer from mood disorders are often considered risks for violence if they are having difficulties in the workplace. Studies show the mentally ill are no more likely to be violent than those without a mental health diagnosis. A mentally ill employee who is struggling with job tasks or getting along with co-workers may be not be a qualified employee with disability, however that does not give employers carte blanche to deem an employee with a mental illness to be a threat for workplace violence.

The offices of Rehm, Bennett & Moore, 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.

This entry was posted in employment law, Nebraska, Workers Compensation and tagged , , .

Who is going to hire me with restrictions?

Posted on by

Injured workers who are looking to return to work with work restrictions after an extended time of healing from an injury face some problems in returning to work. In many cases the injured worker has been off work well beyond any time covered by the Family Medical Leave Act, the Americans with Disabilities Act and or any leave of absence policy, so they are unable to return to their old job assuming they could do their old job.

Workers in this situation often ask “Who is going to hire me with restrictions?” It’s a legitimate question. Here a few do’s and don’ts from my experience as a lawyer representing injured workers.

Do: Work with vocational rehabilitation

Nebraska offers vocational rehabilitation, VR for short, as part of our workers’ compensation act. Sometimes vocational rehabilitation can mean an injured worker gets paid their so-called temporary total disability rate while they go to school. More often this means a vocational counselor helps an injured worker look for work while they are receiving those benefits. VR is the Rodney Dangerfield of workers’ compensation benefits – it often gets no respect – but it can be very helpful for injured workers. It’s also not a benefit that an insurance company will often voluntarily offer to an injured worker like medical benefits or temporary disability pay.

Nebraska also offers vocational rehabilitation through our state department of education. That fact confuses a lot of my clients when I talk about VR through workers’ compensation. But if an injured worker has settled their workers’ compensation case or is fighting their workers’ compensation case, they can use VR through the state department of education to help return to work

Don’t: Assume no one will hire you

Disability discrimination is real. That’s why there is the Americans with Disabilities Act and parallel state laws. Under the ADA, it is illegal for an employer to discriminate against a qualified employee with a disability who can do a job with or without reasonable accommodations.

What that does that last sentence mean?. In plain terms, this means that so long as you meet most of the qualifications of the job, an employer or perspective employer should work with you to make minor tweaks to a job. Sometimes this means using a stool to avoid standing. Sometimes this means using a cart to avoid heavy carrying or lifting.

In practical terms, Nebraska employers claim there is a shortage of workers. I think business interests overstate this concern for political reasons, but as the job market has improved employers seems more willing to take chances on employees.

Don’t: Fail to disclose your restrictions or injury if asked by a new employer post-hire

In order for an employee to accommodate restrictions from an old injury, they need to know about the restrictions. While an employer can’t ask you about a disability pre-hire, they can ask about a disability post-hire so long if it is job related. The “Who is going to hire me with restrictions” line can get a worker into trouble if they don’t disclose they have some restrictions to certain body parts. Again, an employer needs to work with you to some extent on accommodating an old injury,

Failing to disclose an old injury can also make it more difficult to make a workers’ compensation claim if an injury with a new employer worsens an old injury. It can also be grounds to deny a workers’ compensation claim entirely. Failing to disclose an old injury can potentially be grounds for termination for dishonesty on employment application.

Don’t: Tell anyone who isn’t your lawyer or a family member that “No one is going to hire me with restrictions.”

Going back to the “Who’s going to hire me with restrictions?” It’s a legitimate question. But if an injured worker is still fighting a workers’ compensation claim, that statement said to the wrong person can hurt a claim.

Who is the wrong person? Anyone who isn’t a family member or your lawyer.

When a vocational rehabilitation counselor, doctor, insurance company lawyer, insurance adjuster or mediator hears “Who is going to hire me with restrictions?”  they tend to think. “This person doesn’t want to work” and or “This person isn’t hurt as bad as they think they are.”

Why do they think that way? If you work on the insurance-side of workers’ compensation for an extended length of time, I think you tend to perceive cases from that perspective. Lawyers and doctors and other professionals look at work differently. Many professionals tend to live to work rather than work to live. I believe that professional class people glamorize blue collar labor and tend to get nostalgic about blue collar or service jobs they did when they were younger. Professional class people also tend to consume media geared towards professional class people that tends to cover the workplace from the perspective of business.

But regardless of why professionals involved in workers’ compensation case think this way, those professionals have a lot of influence over the value of an injured workers’ compensation claim. Injured workers need to be careful about how they communicate with these professionals.

The offices of Rehm, Bennett & Moore, 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.

This entry was posted in Nebraska, Workers Compensation and tagged , , , , .

Toxic uniforms create health hazards, legal issues for Delta flight attendants

Posted on by

It’s news in and of itself when a story about workplace safety gets national attention. So in case you missed it, I want to draw more attention to the story Mike Elk reported in The Guardian about flight attendants at Delta Airlines suffering rashes, hair loss, shortness of breath and other symptoms they believe to caused by chemicals in their new uniforms.

The reporting was excellent and my summaries don’t do it justice – read the story for yourself. I am writing  to unpack the many legal issues this story raises.

Workers’ Compensation – I have never represented a client who suffered a work injury from wearing their uniform, but I have experience in representing employees who have suffered allergic reactions from substances encountered on the job. I wrote a post about the issues that can arise from mass mold exposure that ran in January. Thinking like a lawyer here, there are several issues that would come to mind in prosecuting this kind of case.

The first question would be jurisdiction. Like truck drivers, flight attendants work all over the country, so several states may have jurisdiction over their claim. (Delta flies out of both Lincoln and Omaha airports, so Nebraska may have jurisdiction over some of these claims) A lawyer would have to judge where to bring a claim based on various factors like benefits available to a worker and causation standards in a particular state.  An injured flight attendant may also be able to claim benefits in multiple states.

Third-Party Negligence – As reported in the story, flight attendants from other airlines have reported similar concerns about uniforms in the recent past. In my view the fact there have similar concerns about flight attendant uniforms in the past, means there could be colorable negligence case against the manufacturer of the uniforms – Land’s End.

Workers’ compensation benefits are limited by law, but in exchange for limited benefit employees can get benefits regardless of fault. If another party is responsible for the injury the injured worker can sue that party for damages that more completely compensate for an injury.

But if a third-party is responsible or partly responsible for a work injury and employee is compensated by that party, an employer who pays workers’ compensated has the right to be repaid  from those proceeds. Repayment rights, also called subrogation rights, can vary from state to state. State law can also vary on third-party case procedure and damages available in a negligence case.

Employment law issues

As reported, many flight attendants have been reluctant to report concerns over the uniform because of fear of retaliation. I am not sure that concerns over the uniform would be covered under the OSHA whistleblower laws. But reporting of unsafe conditions could be covered by state whistleblower laws. Many states also protect employees against retaliation for reporting a work injury ro claiming workers’ compensation. Again jurisdiction would be an important concern.

The article mentioned Delta requiring attendants who did not want to wear the uniform to fill out a reasonable accommodation request under the Americans with Disabilities Act. I believe requiring such formality may run afoul of the Americans with Disabilities Act (ADA).

Last year, a federal court in Nebraska ruled a Wal-Mart employee could proceed to trial on an ADA claim because he didn’t want to wear a long butcher coat that got stuck in his wheelchair. The individual in that case needed a wheelchair because of a disability. The court believed the long butcher coat could cause a safety hazard. The court believed there some evidence the employer didn’t accomodate disability because of failure to allow the employee to alter his uniform. The similarity in the two cases is that when a uniform or part of uniform is a problem for an employee, it can be an easy fix for an employee – change the uniform. Many Delta flight attendants are requesting to wear the old, non-toxic, uniform. That would be simple fix, but that simple fix could be complicated by the formal, time consuming and paperwork heavy accomodation processes required by some employers.

I also believe that sex discrimination could be an issue if women are forced to wear toxic uniforms while male employees don’t have the same requirement.

Collective and class action issues

A theme running throughout the story, is that since Delta is a non-union employer many employees are afraid to speak up about the uniform. I find those fears about retaliation in a non-union workplace to be valid. I also think that many of issues relating to employment law and defective manufacturing may have to be addressed in class action claims since they could affect so many employees.

Support Mike Elk and Pay Report

Many law blog posts end with a pitch. My pitch is to support the excellent reporting and writing by Mike Elk at Payday Report. This isn’t the first time I’ve cited his reporting on my blog. His reporting has changd how I think about some workplace issues. Mike covers the kind of stories that need to be covered and understands the importance of civil rights, safety and labor laws in the workplace. He deserves your support.

The offices of Rehm, Bennett & Moore, 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.

This entry was posted in ADA, Nebraska, negligence, Workers' Compensation and tagged , , , , , .

Why curtailing Auer deference could be bad news for gig economy companies

Posted on by

Newly confirmed Supreme Court Justice Brett Kavnaugh expressed concern about deference to administrative agencies

Last week ride-hailing app., Lyft became the first major gig economy company to go public. Listing shares on the stock exchanges has forced gig economy companies to disclose risks to investors. One of the biggest risks to the  profitability of Lyft and other gig economy companes are “regulations” such as wage and hour laws, unemeployment insurance and workers’ compensation.

Gig economy companies have opened a new front in their lobbying efforts to undermine basic workplace protections. But these companies may have an unexepcted nemesis — conservative-leaning Supreme Court justices.

Last week the New York Times reported that Tusk Ventures, a lobbying/venture capital firm, is starting to lobby state regulatory agencies to exempt gig economy workers from state laws regulating employment. The move by gig employers to undermine workplace laws by administrative fiat was prompted by their inability to effectively lobby state legislatures.

Meanwhile last week, the Supreme Court heard oral argument in Kisor v. Wilkie which could curtail or even eliminate so-call Auer deference. Auer deference is the deference that courts give to how an administrative agency interprets their own regulation. Administrative agencies are often in charge of enforcing laws made by legislatures.

In oral argument, Justices Kavanaugh and Gorsuch were very skeptical of the Auer deference. Gorsuch is notoriously skeptical of other types of judicial deference as well. This skepticism is rooted in a view that adminisatrive rule making and interpreation of can run afoul of seperation of powers principles.

So how does this all fit together? Well, even if lobbyists succeed in persuading some state agencies to exclude gig economy workers from employee protection laws, state supreme courts may be less likely to defer to those decisions if challenged, if the Supreme Court further disapproves administrative deference.

Any future judicial challenges to state administrative agencies excluding gig economy workers from laws like worker protection laws could be similar to the successful judicial challenge to the adoption of the AMA Guides in Pennsylvania. In the Protz case, plaintiffs used a non-delegation argument to strike down the use of the use of the AMA Guides to determine permanent disability. Non-delegation is an old argument that dates back to the early 20th century when pro-corporate judges attempted to strike down pro-worker legislation. That conservative argument was refashioned to protect worker’s rights

Similarly, the concept of judicial deference to administrative agencies arose in the immediate post New Deal era. Those agencies were created to protect workers. Judicial conservatives have traditionally opposed administrative deference. But as business interests have infiltrated these agencies, these agencies have been shaped to serve the interests of business. Arguing against administrative deference on a state level would be a way to protect workers’ rights when management-side interests have commandeered administrative agencies.

Either way case law developed to help business interests may be used to protect workers. I am not arguing that the prospective effective end of administrative evidence would be an unmitigated good for employee rights. I understand how administrative deference can help employees and agree that it can be helpful for employees. But I think lawyers need to use every available tool to help their clients whether it’s through litigation or lobbying.

The conflict about how administrative deference could play out in civil rights laws and social insurance laws like workers’ compensation and unemployment is another example of how these laws, enacted for different purposes and different times, can conflict. Ultimately, I believe the best way to “fix” the conflict is to make sure that civil rights laws and social insurance laws are strengthened legislatively.  Courts and administrative agencies can merely fine tune laws that are made by the legislative branch.

So how would an effort to lobby state administrative agencies look in Nebraska and Iowa? In Nebraska, workers’ compensation laws are administered by the judicial branch not the executive branch. The court can still make procedural and evidentiary rules, but I doubt the Nebraska workers’ compensation court would exclude a class of workers from the act by its rule making process.

Iowa is an administrative system for workers’ compensation and I’m not as familiar with the inner workings of Iowa as I am with Nebraska. In both states, unemployment compensation is administered by the executive branch. At least in Nebraska I think it would be difficult for a gig economy company to get the Nebraska Department of Labor to rule that a gig economy worker is not covered by our Employment Security Act. Neb. Rev. Stat. §48-604 is very specific about who is excluded from unemployment and has a challenging standard for employers to meet in order to be exempted from paying unemployment.

Furthermore, Nebraska law doesn’t afford the special deference to interpretations of the law by administrative agencies. Nebraska law also dictates that unemployment law, like workers’ compensation, be given an liberal construction that benefits the workers.  For those reasons I think a Nebraska court would be skeptical of any rule making that exempted gig economy workers from unemployment benefits. In my mind, I am not sure if any federal court rulings would change how a Nebraska court would rule on the issue.

The offices of Rehm, Bennett & Moore, 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.

This entry was posted in Nebraska, workers' compensation. unemployment and tagged , , .