Why Due Process Matters in Workers’ Compensation

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Two recent decisions from the state supreme courts in Oklahoma and Florida point out that how an injured worker gets workers’ compensation benefits is as important as how much an employee can receive in benefits for a work injury. In the parlance of constitutional law, the how a worker receives benefits is a termed “due process.”

Oklahoma – In Vasquez v. Dillard’s, the Oklahoma Supreme Court found the so-called “Oklahoma option” violated the equal protection clause of the state’s constitution. The Oklahoma option allowed employers to create their own workers’ compensation benefit plans under the Oklahoma Employee Injury Benefit Act (OEIBA) so long as they offered the same benefits as under the state workers’ compensation program. The problem that the Oklahoma Supreme Court had with “Oklahoma option” was that employers were allowed to design plans with procedures that made it more difficult for injured workers to collect benefits than if they were in the state system. In essence, the Oklahoma State Legislature had created separate but unequal workers’ compensation systems for employees injured on the job in that state, which was a violation of the equal-protection clause of the state constitution. But the deeper reason why the Oklahoma option was overturned was that it denied due process to workers who were covered under the OEIBA.

Florida – In Castellanos v. Next Door Company, the Florida Supreme Court struck down attorney fee limits in workers’ compensation cases on due process grounds under the U.S. and Florida constitutions. The Florida court found that fee caps deterred employees from bringing claims because they would be unable to find attorneys. The court also found that fee caps encouraged employers to wrongfully deny claims because workers would be unable to find lawyers to challenge denied claims. Though Castellanos wasn’t an equal protection case like Vasquez, the Florida court pointed out that employers faced no limits on how much they paid their attorneys. Fee caps for employees only created a situation where employees and employers had unequal protections under Florida’s workers’ compensation law.

Vasquez and Castellanos challenged and overturned state laws. But there are other ways for employees to challenge unfair denials of workers’ compensation benefits besides overturning state laws. In the Brown v. Cassens Transportation cases, a group of injured workers in Michigan used a civil RICO statute (anti-racketeering law) to challenge how their employer, the employer’s claims administrator, and a defense medical examiner worked together to undermine their workers’ compensation claims. In Brown, the U.S. 6th Circuit Court of Appeals recognized that since employees gave up their right to a tort suit under Michigan law to receive certain workers’ compensation benefits, injured workers had a constitutionally protected property interest in both the receipt of workers’ compensation benefits and their claims for workers’ compensation benefits and that employer had conspired unlawfully to deny those benefits.

The court in Brown also recognized that workers’ compensation was the exclusive remedy for workplace injuries in Michigan, which is another reason why workers’ compensation benefits were constitutionally protected. The state supreme courts in Florida and Oklahoma also cited the exclusive remedy provisions of their state workers’ compensation acts to support their findings that state laws violated due process and equal protection clauses of the state and federal constitution.

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.

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Workers Risk Injury During Holiday Shopping Season

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The day after Thanksgiving, or Black Friday as it is known, is anticipated by millions of Americans as a fun holiday shopping tradition that marks the beginning of the Christmas season. But crowded stores and the hunt for bargains can create hazards for shoppers and retail workers. For example, in 2008, a Wal-Mart employee was trampled to death outside a store in New York City.

But leaving aside the extreme examples of hazards, the holiday shopping season poses many less-publicized risks to retail workers.

The first risk posed to holiday workers, especially on a day like Black Friday, is the additional risk of injuries on overnight shifts. The National Institutes of Health reported that the risk of injury on an overnight shift is 30 percent higher than during a day shift. That same report also quoted a British report that showed that work injuries increased exponentially for every hour worked in a shift after eight hours. This is a risk when employees work long hours over the Black Friday weekend and when employees, many who are working another job, come to their holiday jobs after they have already worked a full day. Finally, new and temporary employees, including many holiday workers, face a higher risk for injury.

Today marks the so-called Cyber Monday, when shoppers traditionally place online orders. Online shopping has increased the need for delivery drivers. Delivery driving can be a hazardous job, due to lifting and the risk of motor-vehicle accidents. The risk of delivery driving is compounded by the fact that many delivery drivers are misclassified as independent contractors, so they lack protections like workers’ compensation. One recent story from The Indpendent out of the U.K. revealed that contract delivery drivers for Amazon.com were paid less than the minimum wage and were forced to urinate and defecate in their vehicles to make their deliveries in a timely manner.

Holiday workers face all of these risks for pay that is generally low. Plus, if an injury from a temporary holiday job prevents a person from working their regular, full-time job, that employee faces difficult issues maintaining both employment and benefits with the main, full-time employer.

If there is anything positive about the coverage of Black Friday, it’s helpful that workplace violence among low-wage workers gets covered. Among the most vulnerable to violence are convenience store clerks working overnight shifts. The Indiana Department of Labor did a study that showed 32 convenience store clerks were killed on the job in 2010. Last summer, a clerk was shot at a northwest Lincoln Kwik Shop, here in Nebraska. That murder was covered as a crime story here in Lincoln. However, that murder and the murders like it all across the country should also be covered as workplace-safety stories.

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.

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Happy Thanksgiving! Wishing You and Yours a Safe Holiday

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Happy Thanksgiving to you and yours. The office of Rehm, Bennett & Moore, P.C., L.L.O. and Trucker Lawyers will close at 3:30 p.m. today. We will be closed on Thursday, Nov. 24, and Friday, Nov. 25, for the Thanksgiving holiday. We will open again on Monday, Nov. 28, at 8:30 a.m.

Whether traveling, working, cooking for loved ones, or playing a post-feast football game with those loved ones, please have a safe and enjoyable holiday. Special thanks go to the people (and the sacrifices that their loved ones make to share them) who will be busy taking care of others by working this Thanksgiving: first responders, health care workers, truck drivers, and those who have retail jobs at stores open on Thanksgiving or prepping for Black Friday. In addition, all of the businesses that choose to be closed for Thanksgiving are appreciated, as are companies that get their drivers home to be with loved ones for the holiday.

If you plan to do some shopping on Black Friday, please take note of this OSHA FactSheet resource regarding crowd management safety guidelines from the U.S. Labor Department.

We are thankful for so much. At this time of thanksgiving, we are especially thankful for family, friends, and the opportunity to advocate for clients who make our work worthwhile. Happy Thanksgiving!

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.

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A High-Tech Update on a New Black Friday Tradition

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OUR Walmart has been protesting working conditions at Wal-Mart on Black Friday since 2011. This year, OUR Walmart will forego protests and instead promote the WorkIt app, which uses IBM’s Watson technology to inform Wal-Mart employees about their rights at work.

Walmart is warning employees against using the app. If Walmart were to terminate an employee for downloading the app, this would likely be an unfair practice under the National Labor Relations Act, and it would likely be unlawful retaliation under Nebraska law as well.

The positives of WorkIt

WorkIt uses technology to allow workers to push back against management. Traditionally, this has been the role of labor unions. But the application essentially cuts out that middleman. Organized labor has had great difficulty organizing at Wal-Mart, but if the app serves some of the main functions of a union, it is a benefit for Wal-Mart employees.

Nebraska’s junior senator, Ben Sasse, decided that he would moonlight as an Uber driver in Nebraska a few Saturdays ago. In a press release, he touted the benefits of the “disintermediation” of the workforce. Disintermediation is a fancy term for cutting out the middleman. Uber cuts out the middleman by connecting drivers directly with those needing a ride through an app. Of course, Uber thinks that the user of the app can cut out the need for things like fair-employment protections, unemployment insurance and workers’ compensation coverage for their drivers as well. Most employee advocates have concerns about this relationship. If nothing else, the WorkIt app shows that technology is a tool to expand workplace protections even as the use of technology erodes workplace protections.

Possible downsides to WorkIt

Apps and other computer programs are only as good what the programmers input into the programs. Wal-Mart employees probably do know Wal-Mart policy, but other employee-protection laws, especially workers’ compensation laws, vary from state to state. The WorkIt app may not be able to help people with state-specific questions.

Furthermore, Wal-Mart isn’t under any obligation to follow its own policies in a non-union workplace. Failure to follow those policies could be evidence of wrongful conduct, but it isn’t unlawful per se. In short, knowing company policies can be helpful, but management has wide discretion in how it interprets those policies. That’s where having a union steward or representative is helpful in a dispute with management, as the steward will have a better idea of how those policies have been interpreted in the past.

Finally, while an app is helpful, it somewhat undercuts the idea of collective or concerted activity, which forms the basis of unionization. Instead of reaching out to other employees about common concerns, just relying on an app could reinforce the strategy of taking individual grievances to Wal-Mart through what they call their “Open Door Policy.” Apps can reinforce the atomized, overly individualized relationship that people have with technology and their employers.

But in the wake of the recent elections, some veteran union organizers are calling for a radical rethinking of how to organize workers. WorkIt may be part of that new tool kit to organize workers in the 21st century. Apps are already part of workers organizing for rights. In China, workers are using the WeChat app to organize independent unions. Hopefully U.S. workers will start using apps like WorkIt and existing apps to protect themselves 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.

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Celebrate Kids’ Chance Awareness Week through Involvement

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kids-chance-of-nebraskaKids’ Chance Awareness Week is going on right now. Nebraska and 35 other states have organizations that provide postsecondary and trade-school scholarships to the children of workers who have been severely or fatally injured in a workplace accident.

As a founder of Kids’ Chance of Nebraska, along with Lincoln lawyer Dallas Jones, I am pleased to celebrate this week by announcing that five students have received scholarships this year through the nonprofit statewide organization. Two of the five students are repeat scholarship winners!

This excellent website tells the important stories of students nationwide who have benefited from scholarships, so I encourage you to take the time to click on the Faces of Kids’ Chance. Then, if so moved, feel free to support Kids’ Chance of Nebraska by attending the upcoming bowling event on Jan. 23, 2017, or donating funds to go toward scholarships through the KCNE website.

The employees at Rehm, Bennett & Moore and Trucker Lawyers will continue to support Kids’ Chance of Nebraska with our time and donations.

A major way that Kids’ Chance helps students is with the Planning for College Initiative. This program is designed to reach potential scholarship applicants, regardless of their age. We collect and maintain contact information for identified students and communicate with them when the time comes to start considering college. Awareness Week is pivotal in helping us identify these students. If you or someone you know is eligible for a Kids’ Chance scholarship, please visit Planning for College and submit a form.

We believe that investing in the educational future of children affected by a familial workplace injury will make a difference in their lives and subsequently help the lives of others. Although Kids’ Chance reaches hundreds of students each year across our 36 state organizations, we know that there are more students in need of assistance. Awareness Week will help us extend our reach and identify more students. We are all focused on this guiding principle: More money for more kids!

The mission of Kids’ Chance of Nebraska is to provide scholarships to children of workers who have been injured or killed on the job. Collectively, we have awarded 5,593 scholarships across the country, totaling over $16,592,000 in 36 states. For more information, please visit the Nebraska website at Kids Chance of Nebraska and the national website at Kids Chance of America

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.

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Counterclaims in Nebraska Workers’ Compensation

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nebraska-supreme-courtEarlier this year, the Nebraska Supreme Court struck down the ability of defendant-employers to file counterclaims in workers’ compensation cases. See Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586 (2016).

What does this mean for workers?

The biggest advantage this decision has for workers is the fact that a worker may dismiss a case at any time without prejudice under § 48-177 without having to worry about a counterclaim still hanging out there. In other words, this decision could prevent employers from forcing a trial before plaintiff is ready or if plaintiff wants to wait for trial until after the she or he is done treating.

Another benefit of this recent decision might be a little less obvious. Under Thomas v. Washington Gas Light Co., the U.S. Supreme Court held that a worker may be able to have workers’ compensation coverage in multiple states for the same accident/injury. The reason this is important with respect to counterclaims is that the injured worker now has the ability to dismiss the lawsuit to allow for potentially more-favorable benefits in another state, while still maintaining the option to return to Nebraska jurisdiction at a later date if necessary.

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.

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Department of Labor Weighs In on New Age of Salary Servitude for ‘Executives’

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Most of the U.S. workforce has the right, provided by the Fair Labor Standards Act, to be paid overtime for working more than 40 hours in a week. Before the federal government set rules for overtime, most employees worked longer hours, and millions of Americans worked six or seven days a week, as Chinese factory workers do today. Salaried workers also have the right to be paid a premium for overtime work, unless they fall into an exempt category as a professional, an administrator, or an executive. Exempt employees must be skilled and exercise independent judgment, or be a boss with employees to supervise. However, many companies have worked to get around these overtime rules by classifying employees like cooks, convenience store employees or restaurant workers as “managers,” “supervisors,” or “assistant managers or supervisors,” so that their employer can deny them overtime under this exception. 

In May 2016, the Department of Labor issued its final rule establishing a new minimum salary threshold for the white-collar exemptions (executive, administrative and professional) under the Fair Labor Standards Act. This new threshold of $913 per week ($47,476 annualized) more than doubles the current minimum weekly salary threshold of $455 per week ($23,660 annualized).  While that may seem like a huge increase, the old threshold level is only $2 a week above the poverty level for a family of four. Twenty-one states have filed suit to challenge this rule, citing the rule will force many businesses, including state and local governments, to unfairly and substantially increase their employment costs. 

The old rule allowed companies to put employees on “salary” at a low rate and require them to work sometimes significant overtime. The fact that so many government entities are concerned about this new rule substantially increasing their employment costs underscores the extent to which even government entities have taken advantage of employees in this fashion. Can you imagine earning $25,000/year and having to work 50, 60 or 70 hours a week? Even at 50 hours a week, that equates to an hourly wage of only $8.01!

In the first year, the department estimates that the new rule may affect, in some manner, over 10 million workers who earn between $455/week and the new $913/week threshold.  

The median worker has seen a wage increase of just 5 percent between 1979 and 2012, despite overall productivity growth of 74.5 percent (Mishel and Shierholz, 2013), according to the Economic Policy Institute. One reason Americans’ paychecks are not keeping pace with their productivity is that millions of middle-class and even lower-middle-class workers are working overtime and not getting paid for it. Before this rule change, the federal wage and hour law was out of date. This change purports to correct this modern day servitude that the law – for the last 30 years – has carved out a huge exception, allowing workers to be taken advantage of simply by assigning them a title and paying them a salary.  

 

Sources:

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.

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