Does higher unemployment mean higher workers’ compensation benefits?

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Last fall, I wrote about my opinion that good economic conditions often lead workers to be underpaid for work injuries.

But will that conclusion change now that unemployment has increased to historic highs? Maybe, here is how I believe higher unemployment could affect the value of workers’ compensation cases.

Loss of earning power

Nebraska law pays back injuries, head injuries, mental injuries, burns, multiple body part injuries on how they impact your ability to work. Nebraska calls the impact of a work injury on your ability to work “loss of earning power” or “LOEP” for short.  A medical opinion about the harm, restrictions or loss of use caused by an injury is just starting point in deciding loss of earning power.

Courts consider social and economic factors along with physical restrictions in calculating loss of earning power. Those other factors include: education, age, where you live and transferable skills.

The competitive labor market

Where you live is important because it gives the court an idea of the jobs available to you. Oftentimes in workers’ compensation cases there is an argument about which cities or areas to include in a job market. But the mere availability of work in your area doesn’t determine your loss of earning power.

Under Nebraska law, loss of earning power is based on a competitive labor market. When times are good, the players in the workers’ compensation system ignore the idea of a competitive labor market.

But when unemployment rises, lawyers, judges and vocational counselors, (the experts who help decide LOEP) may remember the idea of a competitive labor market. In a competitive labor market, someone who lost a job due to a work injury is going to have difficulty finding a job. The same goes for workers with serious work restrictions.

Retail jobs, along with food service jobs, are considered by many to be an employer of last result. But when unemployment spiked in March, Wal-Mart has 1,000,000 applicants for 150,000 open jobs.  In comparison, Ivy League school Cornell University accepted 14.1 percent of applicants in this year. So I think it’s fair to say that the labor market is competitive. (I’ve noticed a lack of articles about the “skills gap” and “employee ghosting” since March)

No place like Nebraska?

Under Nebraska law, judges decide loss of earning power based on local economic conditions.. The good news/bad news for Nebraska workers is that Nebraska still has the lowest unemployment in the nation. Nebraskans may not see a major increase in permanent disability benefits due to economic conditions.

But workers who live outside of Nebraska can claim Nebraska workers compensation benefits. Generally they can claim benefits if they were hurt in Nebraska, hired in Nebraska or their employer is based in Nebraska. Residents of other states would have their loss of earning power or disability determined based on where they live. These workers may see increased permanent disability benefits.

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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More redeterminations by the NDOL as Nebraska unemployment appeals increase?

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In a first for me, the Nebraska Department of Labor reversed a finding that my client had quit without good cause and awarded my client full unemployment benefit without a hearing.

The procedure where the Nebraska Department of Labor reverses itself on benefit determination without a hearing is called redetermination. As unemployment claims and unemployment decision appeals increase, I believe the Nebraska Department of Labor will use increasingly use this procedure.

What is redetermination and how is different than appeal

Normally reversing a decision by a claims adjudicator requires filing an appeal under Neb. Rev. Stat. §48-634. The appeal usually leads to a hearing where an administrative law judge decides whether someone is eligible for unemployment benefits.

But Neb. Rev. Stat. §48-631 allows an adjudicator to reconsider their decision. They can reconsider based on newly discovered wages, miscalculated wages or determinations made on misrepresentations of fact.

Now misrepresentation sounds like and would apply to fraud by an employer or employee. But, 219 NAC 15 001-D(1)  broadly defines misrepresentation for the purposes of redeterminations. For the purposes of redetermination, ignorant misrepresentation can prompt a redetermination. A lawyer may know how to obtain documents or know what documents to submit to prove a case for unemployment that a newly unemployed worker wouldn’t have thought to submit initially.

Why I think increasing in unemployment claims will lead to more redeterminations?

First, I think the Nebraska Appeal Tribunal, the court that hears unemployment appeals, is looking to manage their case load. As a result of the pandemic, I estimate the case load at the Tribunal has nearly tripled since before the COVID pandemic.

Consequently the increase in case loads since the pandemic has doubled the time between appeals and hearings from about four to eight weeks.  But by law, the Appeal Tribunal wants to schedule hearings as soon as possible. But one advantage to a longer lag between appeal and hearing date is having more time for discovery.

With more time, a lawyer can submit those documents to the Tribunal well in advance of hearing. By submitting those documents to the Department of Labor, the Department can make a redetermination short of hearing.

Redetermination as summary judgment?

In regular civil cases, courts can dispose of cases through summary judgment. Summary judgment is a disposition of a case based on documents without a trial. The purpose of summary judgment is to speed up case resolution and save court time.

However the Nebraska Appeal Tribunal lacks a summary judgment procedure. In normal times something like summary judgment is unnecessary. However as appeals back up, the redetermination procedure may function as a form of summary judgment in the Nebraska Appeal Tribunal.

Redetermination isn’t always the end

But, parties can still appeal from a re-determination — this means employers. But in my experience, employers are less likely to appeal determinations that go against them. Addtionally, the CARES Act makes it less likely that employers will have their rates go up or be charged if an employee quits with good cause or is fired without good cause. This lessens their reason to file an appeal

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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Fast and Federal: How LGBT Nebraskans should sue for discrimination on the job

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In a somewhat surprising 6-3 decision, the United States Supreme Court held firing an employee because of sexual orientation or gender identity is illegal under federal law.

This meaningful decision was even more meaningful in Nebraska. Nebraska lacks state laws that prohibit workplace discrimination based on gender identity and sexual orientation.

So, how do gay, lesbian and transgender individuals seek justice for workplace discrimination in Nebraska?

180 days to file with EEOC

If you want to sue your employer for sexual orientation or gender identity discrimination in Nebraska, you should file a charge with the federal Equal Employment Opportunity Commission. The charge must be filed within 180 days of when you were fired or your employer took adverse action against you. This is the safest way to bring a case.

Filing a charge of discrimination against your employer is not the same as suing your employer. But under federal law, you should file a charge of discrimination before you can sue your employer. Federal law also requires you to file in federal court. You have 90 days from getting this written permission, called a right to sue, to file in federal court.

Nebraska law normally allows you 300 days to file a charge of discrimination. Charges filed within the 300 days under state law are normally timely under federal law as well. But since Nebraska doesn’t formally cover gender identity or sexual orientation, it is uncertain whether the Nebraska Equal Opportunity Commission (NEOC) would accept that charge. It is also uncertain or whether the EEOC would accept a charge filed after 180 days.

I believe any charge of discrimination based on gender identity or sexual discrimination filed after 180 days would be challenged. as untimely.

How you win your case

I’ve read a lot of misinformation on social media (no surprise) about how discrimination cases work. First, as Justice Gorsuch makes clear, gender identity or sexual orientation does not need to be the sole reason you were fired. Sexual orientation or gender identity just need to be part of the reason you were fired.

Second, the vast majority of discrimination cases are proved by circumstantial evidence. Just because your employer doesn’t tell you that you were being fired for being gay or transgender doesn’t mean you can’t win your case. In a related note, your employer making up a reason to fire you isn’t a defense either. In fact, this would help your case as making up a reason to fire someone as cover for a real reason is defined legally as pretext. Pretext is circumstantial evidence you were fired for an unlawful reason.

Finally, being fired for poor performance or breaking a rule at work may not be a defense to a discrimination case. If your employer tolerated the same misconduct by a similarly situated heterosexual or cisgendered co-worker, that would also prove discrimination.

After 180 days but before 300 days

Nebraska law does not require that you file a charge of discrimination with the NEOC to sue your employer for illegal discrimination.  But Nebraska has a 300 day statute of limitations on filing a civil suit against an employer for discrimination. In other words, under state law in Nebraska, you can circumvent the NEOC altogether.

But why would you file a state law claim when state law doesn’t expressly include gender identity and sexual orientation?

The answer is that courts in Nebraska tend to follow federal law in interpreting our state’s anti-discrimination laws. So, you could file a case within 300 days and still succeed under Nebraska state law. But there is no guarantee the Nebraska Supreme Court would follow the United States Supreme Court. Even if the Nebraska Supreme Court found in your favor, the employer would be almost certain to appeal. Appeals can be costly and time consuming. They can also delay resolution of a case.

Bad employees can win discrimination cases, but…

Finally any employee suing their employer for gender identity or sexual orientation discrimination under current Nebraska state law would be acting as a test case. In practical terms that means you need to have a very strong case. All three cases in the United States Supreme Court decision fit that description. Nebraska law doesn’t include an “so-so” or “mediocre” employee exception to our workplace discrimination laws. But in practical terms, a court may be tempted to dismiss a test case involving a sub-par employee.

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 COVID barriers do double duty for workplace safety?

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Barriers designed to stop the spread of COVID-19 are popping up in stores, restaurants and offices. These barriers may also protect employees from violence.

A 2012 study by the Indiana Department of Labor showed that bullet proof glass was effective in protecting convenience store clerks from violence. The study also showed that barriers discouraged violence by preventing criminals from climbing or jumping over counters.

Even before COVID-19 retail and service employers were taking measures to protect employees against violence. Hy-Vee, a major Midwestern grocery chain, ended 24-hour operations this year before the COVID pandemic. That move likely protected employees from violence. Last year, I wrote about a local bank that started to restrict entry and another bank that put up barriers to protect tellers.

Companies took these measures before the term “essential worker” entered widespread usage and applied to retail employees. One silver lining to the COVID crisis is the newfound respect gained by retail, delivery, warehouse and other service employees like fast food workers.

The rise of the essential worker

This newfound respect could translate into newfound political clout. Many states have proposed laws giving workers a presumption of compensability for COVID-related claims under workers’ compensation laws. Some states have included retail employees within those presumptions.

Federally, Rep. Carolyn Maloney (D-N.Y.) introduced the Pandemic Heroes Compensation Act of 2020. Modeled after the September 11th Victim Compensation Fund, the bill would allow essential employees or their families to claim compensation for injuries related to COVID. This fund would either supplement or provide an alternative to state workers’ compensation laws.

I believe this a semi-revolutionary development. Pre-COVID, first responders like police and firefighters held a privileged status within workers’ compensation laws. For example, in many states firefighters get a presumption of compensability for heart attacks. For non-firefighters looking to have an on the job heart attack covered by workers’ compensation, there is a higher standard of proof than a regular workers’ compensation injury.

First responders, in Nebraska and in many other states, can receive “mental-mental” workers’ compensation benefits. Mental-mental injuries are mental injuries without a physical injury. All other workers need to show some physical injury to have mental trauma from a workplace incident covered by workers’ compensation.

I believe politics explains why first responders have more protections under Nebraska workers’ compensation law. Politicians want support from first responders. First responders also have enormous political muscle through their unions. Most retail workers, at least in Nebraska, aren’t represented by unions. Some management-side attorneys worry, for good reason, that more employees may form unions in the wake of the pandemic. Labor organizing among retail employees could be necessary to translate goodwill from the public into improvements in working conditions.

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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Feds prosecuting COVID fraud by employees

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My jaw dropped last Tuesday when I read a blog post by Ohio-based management defense attorney Jon Hyman.

Hyman posted the Department of Justice criminally charging an employee for allegedly defrauding his employer by submitting a forged doctor’s note stating he had COVID-19. Human Resources and management-side defense social media share a near obsession with Family Medical Leave Act (FMLA) fraud by employees.

So why can HR now sic the FBI on employees who forge  off-work notes?

The CARES Act, interstate commerce and taxing power

The answer to this question is the CARES Act. Passed in response to the COVID-19 crisis, the CARES Act amended the FMLA to provide some employees with paid leave related to COVID-19. The CARES Act also used federal funds to expand unemployment benefits related to COVID-19.

Normally state law would govern the prosecution of small-time workplace fraud under crimes like forgery and unemployment fraud. But a federal bailout creates federal criminal jurisdiction. The United States Department of Justice is aggressively prosecuting COVID fraud. Some employer-advocates question the use of the federal power to regulate interstate commerce for the good of employees. But the interstate commerce clause also expands the ability to federalize crime. It seems like employer-advocates are welcoming the expansion of federal authority to prosecute fraud by employees.

Federal taxes partially fund unemployment benefits. This would give the federal government the power to federalize unemployment fraud through the taxing power granted to Congress by the Constitution.

The real COVID fraudsters

The Georgia case is the first known incident of an employee being prosecuted for forging a medical note. COVID-related fraud mirrors workers’ compensation fraud in that most fraud is not committed by employees.  Apparently organized crime is submitting false unemployment claims. Some individuals and businesses are falsely submitting claims under the Paycheck Protection Program. If an employee suspects their company is abusing the Paycheck Protection Program they could bring a claim under the False Claims Act.

But while low level employees are not committing the vast majority of COVID fraud, low-level employees are the easiest to prosecute. Prosecuting low-level employees for COVID fraud serves at least two purposes for employers.

Reopening and unionizing

As the perceived threat of COVID recedes, many businesses are reopening and employees are returning to work. Employers complain that some employees are reluctant to return to work because of enhanced unemployment benefits. However many employees are expressing safety concerns about COVID exposure. Publicizing the prosecution of COVID fraud by employees calls into question the legitimacy of employee safety concerns. Criminalizing COVID fraud by employees also allows employers and their mouthpieces in the media to portray workers worried about COVID as welfare cheats.

The use of state power on behalf of employers against employees serves another purpose. Mike Elk of Payday Report tracked walkouts and strikes related to the COVID 19 pandemic. Management-side pundits are also expressing concern about rising pro-union sentiments by employees.  Prosecuting employees is one way to intimidate employees who want to form unions or engage in collective action in the workplace.

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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Why civil rights laws tolerate racial discrimination in the workplace

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The murder by Minneapolis Police of George Floyd sparked clashes between protesters and police this weekend in Nebraska and nationally. Elected officials in Lincoln and Omaha imposed almost unprecedented curfews attempting to quell violence.

The protests focused some attention on the problems with civil rights laws in remedying police violence against people of color. But, civil rights laws are also flawed when it comes to discouraging discrimination on the job.

“But for” and “motivating factor”

An employee must show their employer used race as motivating factor to win a racial discrimination case under state or federal law. The law distinguishes “motivating factor” from the more permissive “contributing factor” standard. Legally an employer could get away with being sort of racist in making an employment decision, so long as they weren’t too racist.

The United States Supreme Court recently increased the quantum of legally tolerated racism towards African-Americans. In the Comcast decision, the Supreme Court held African-Americans must prove race was a “but for” factor to win under 42 USC 1981. Plaintiff’s face an even steeper burden of proof in proving a “but for” factor rather than a motivating factor.

42 USC 1981 outlaws racial discrimination in contracting – including employment. But Section 1981 does not require claimants to file an administrative charge and has a four year statute of limitations. Title VII has a 300 day statute of limitations and requires claimants to file a charge of discrimination with a civil rights agency. Weakening the substantive protections of 1981 undercuts the procedural advantages of bringing a 1981 claim.

Reasonable inference or speculation?

Civil rights laws still pack some punch in stopping racial discrimination at work. The law tolerates some level of racial discrimination in employment. But it is up to a jury to weigh how important racial discrimination was in an employment decision. That is an expensive and risky proposition for an employer. A judge shouldn’t dismiss a case on summary judgment, if an employee shows race was a contributing factor in their termination.

On summary judgment, judges are supposed to give employees the benefit of reasonable inferences. But what one person views as reasonable inference another might view as speculation. Speculation won’t beat a summary judgment motion.

Contributing factor causation would take the guesswork out of summary judgment motions in employment discrimination cases.  The increased likelihood of a jury verdict in a racial discrimination claim would force employers to increase vigilance in preventing racial discrimination in the workplace.

Implementing contributing factor causation in employment discrimination cases and abolishing qualified immunity in police brutality cases won’t make racism disappear. But those proposals are at least concrete measures that would lessen the effects of racism in this country.

I believe it’s important to state that appellate court judges have written these causation standards into civil rights laws. But what judges do, legislators can undo. I hope the undoing starts in Lincoln and Washington DC soon.

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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OSHA reverses course on COVID-19 reporting

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In what amounts to a reversal of policy, the Occupational Health and Safety Administration (OSHA) is requiring most employers to record possible COVID-19 exposure on the job. OSHA’s reversal will make it easier for workers to prove workers’ compensation claims for COVID-19 exposure.

Per OSHA requirements, employers must conduct a basic investigation about the potential causes of COVID-19 exposure. Employers must give employees any OSHA reports, upon request, about their work-related injury or illness.  Employees should also be able to obtain OSHA reports through discovery in a workers’ compensation case or from a union representative.

OSHA’s reversal increases the chances that state workers’ compensation agencies and courts will report better information about COVID-19 exposure. As I wrote in April, employers tend to blur state and federal reporting standards.

OSHA’s reversal on COVID-19 reporting coincides with the AFL-CIO suing the agency to impose stricter standards for COVID-19. In addition to the AFL-CIO suit, a workers’ group sued meatpackers over the public health effects of COVID-19 outbreaks at packinghouses. The reversal of policy also coincides with a group of state attorney generals suing Amazon over workplace COVID-19 data.

More federalization of workers’ compensation

But while OSHA’s actions place a small thumb on the scale for workers’ rights, the specter of federal immunity for COVID-19 workers’ compensation claims lingers. The Senate has yet to take up the latest COVID-19 bailout package passed by the House of Representatives.

But there may be some somewhat positive federal legislation impacting state workers’ compensation law. Rep. Joe Kennedy III (D. Mass) introduced a special fund that would compensate essential workers and their families effected by COVID-19 through a federal program. This legislation is modeled on a federal fund for workers killed and injured due to the September 11, 2001 attacks.

Another bit of good news is that the Senate passed a presumption for death benefits for first responders killed in the line of duty duty related to COVID-19. In my view, general federal immunity for workers’ compensation can co-exist with a presumption of compensability for first responders. I, and other workers’ compensation bloggers/commentators have written frequently about a two-tier workers compensation system. Legislators tend to favor first responders like police and firefighters. This political favor leads to the benefit of presumptions of coverage for certain injuries and protections for ‘mental-mental” injuries unavailable to less favored workers.

The rise of the essential worker?

Workers like retail workers belong to the second or less favored tier — or at least they did before COVID-19. COVID-19 has introduced the concept of the “essential worker” into mainstream discourse. Many states have looked to include essential workers in enhanced workers’ compensation laws for workers exposed to COVID-19. I’ve been writing about and advocating for these workers for years. But I guess it takes a public health crisis to recognize the importance of retail, warehousing, delivery and meatpacking workers.

Legislative changes in Nebraska?

Last week, Nebraska announced it will re-start our Legislature on July 20th. The Unicameral generally adheres strictly to unwritten norms about deference to committees. Generally, a bill about expanding workers’ compensation benefits would be discussed in the Business and Labor Committee. But the COVID-19 crisis is a highly unusual situation. It will be interesting to see if there are any COVID-19 related changes to workers’ compensation laws made when the legislature restarts.

COVID-19 related changes to workers’ compensation may have to wait until next year in Nebraska. Of course there could be a different legislature depending on the outcome of November’s elections. This is all the more reason to research, vote for and support legislative candidates who support expanding workers’ compensation.

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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Pandemic exposes problems with outsourced leave and disability

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The COVID-19 pandemic is exposing the deep flaws of unemployment insurance, workers compensation and the employment at-will doctrine. The pandemic also shows problems with how family and medical leave is administered.

Outsourced leave administration

Many large employers outsource FMLA leave eligibility decisions. Often times the leave administrator also decides whether an employee receives short-term and long-term disability. Even in normal times,  outsourced leave companies will miscalculate leave eligibility for employees. I believe this happens because the leave and disability companies aren’t communicating with HR departments. I’ve also heard from employees about faulty leave administration software.

Bad communication between leave administrators and HR departments leads to employees losing their jobs. Sure an employee can sue their former employer, but litigation is time consuming and uncertain.

But if even if leave companies and human resources departments are communicating, they may not be acting in good faith. Again, even in normal times human resources departments and leave administrators often hassle workers about insufficient documentation about the need for FMLA leave.

So, how does this pandemic make this bad situation worse.

Outsourcing leave during a pandemic

There are several reasons why leave administration falls short during a pandemic. First, more people will be taking leave either for themselves or take care of a family member. Congress has also expanded eligibility for family and medical leave benefits. As a result, like with unemployment, more people will be making demands for leave. This will slow down the process.

But, this heightened demand for leave could be met with a reduced response by leave administrators. The people employees rely on to process leave claims tend to be working at home.  Working from home has slowed down the processing of insurance and other claims.

Finally, family and medical leave requires medical documentation. Workers often stumble in completing required paperwork. But during a pandemic, doctors may lack the time to fill out paperwork. Despite this difficulty, the Department of Labor disagreed with the Centers for Disease Control and required employees to provide medical documentation of COVID-19 leave.

Why does leave administration stink so bad?

Family and medical leave administration sucks so badly for employees because it’s often tied to private disability insurance. Like workers’ compensation, private disability is a for-profit social insurance program. But unlike workers’ compensation , there is weak judicial accountability for denials of private disability.

Bluntly I believe the disability insurers use leave administration as a way to sell disability policies to employers. While disability policies can be useful for workers, insurers would rather collect premium than pay claims. Many employees would rather shift the cost of work injuries onto disability insurance.

When it comes to long-term disability policies, employers and insurers share goals when it comes to cost-shifting. Many long-term disability policies require covered employees to apply for social security disability insurance (SSDI). Policies often include language that lead the insurers recoup disability benefit payments if employees receive SSDI. This leads disability insurers file SSDI on behalf of employees even if they never decided to apply. I would expect to see this practice increase as unemployment increases to levels not seen since the Great Depression.

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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