Neb. Ct of Appeals tightens notice requirements in workers’ compensation cases

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The Nebraska Court of Appeals held that waiting 38 days to report a work injury was enough delay in reporting to dismiss a workers’ compensation claim. Though what constitutes timely notice is a case by case determination, the Bauer v. Genesis Health Care case is troubling for workers for many reasons.

  1. Fear of retaliation not an excuse for not reporting injury – In the Bauer case the employee was worried about his job security and testified this one reason he delayed reporting his work injury. The suspicions about termination weren’t unfounded as the employee as put on leave 10 days after his injury. The Nebraska Court of Appeals disregarded this argument and found the plaintiff would have still been able to report his injury.
  2. Change in personal plans can trigger duty to report work injury – The law requires that an employee report an injury as soon as practicable. “As soon as practicable” can vary by the circumstances. The key fact is that the employee knows something could be wrong because of a work injury. In this case the fact the employee cancelled a personal trip a week after the work injury was one fact that persuaded the court the that plaintiff did not report his injury as soon as practicable.
  3. Stricter reporting standards for medical personnel – The court thought it was relevant that the injured worker was a physical therapy assistant was relevant to their conclusion that the employee did not report their injury as soon as practicable. Their theory was that professional knowledge should have lead him to conclude he needed treatment and that the injury should be reported. I wouldn’t be surprised to see insurers and their attorneys try to broaden this argument to all types of medical personnel.
  4. Change in work duties can trigger duty to report – The Bauer case was unusual in that since he was a manager he could place himself on light duty without asking permission. Usually asking for light duty would be enough notice for an employee to meet the notice requirement. But since Bauer didn’t ask, he didn’t put his employer on notice about his injury. Employees who work with co-workers to change job duties to accommodate a work injury may be vulnerable to having their workers’ compensation cases dismissed for lack of notice, if they don’t report a work injury to a supervisor soon after their duties change.

Other takeaways from Bauer

  1. Referral to specialist probably triggers a duty to report — Bauer cited to Williamson v. Werner, where the court held that an employee should have reported their injury to their employer after they reported it to their doctor. That didn’t happen in Bauer as the employee denied he was hurt at work at his first two medical visits. The court thought it was relevant that at the first visit after the work injury that he was referred for an MRI and to a specialist, yet did not report his injury to his employer.
  2. Appearances matter – Bauer had some other bad facts working against him: 1) He didn’t report his work injury until after he had been placed on leave and 2) He twice denied that he was hurt at work to providers. The court stated an employee who provides proper notice of an injury is one that is acting in good faith or honestly. Changes in stories about how an accident happened or irregularities in reporting don’t create an impression of good faith even if they can be explained. But if fear of termination is the explanation of why an employee doesn’t report a work injury, the Bauer decision indicates Nebraska courts won’t consider that factor.
  3. How the fear of retaliation harms workers’ compensation and retaliation claims – The Bauer case represents a common situation where an employee doesn’t turn in a work injury over fear of retaliation. Workers’ compensation retaliation is unlawful, but it is difficult for an injured worker to claim retaliation if they don’t report their work injury. So fear of retaliation can undermine both a workers’ compensation claim and a retaliation claim.
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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Perks may not count as wages under federal law, but count as wages under Nebraska workers compensation law

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The United States Department of Labor announced it will change their Fair Labor Standards Act (FLSA) regulations to exclude certain types of bonuses and employee perks from the wage rate used to calculate overtime payments.

So whether you believe this is another gut punch for wage earners or a grant of freedom to business to offer perks to their employees, keep this in mind about the new rule:

First rules from an executive agency don’t have the full force of law. Administrative regulations are subject to court review. On the bright side for employee advocates, the Supreme Court is giving less deference to those regulations. But on the “dark side”, if you believe that a lot of Supreme Court cases are outcome driven, then it’s likely that ultimately the Supreme Court will uphold the new rules based on their policy preferences that favor business over labor.

Secondly, assuming the DOL rule is upheld by federal courts, state wage and hour laws may have a broader definition of what constitutes wages.  For example, the Nebraska Wage Payment and Collection Act includes fringe benefits that are not included under the FLSA as wages.

Finally, the DOL rule will have no bearing on how state workers’ compensation courts define wages.  Wages determine disability rates for work injuries. Nebraska has a simple and relatively employee-friendly rule for when perks constitute wages: if an employer reimburses and employee for an expense, it is not considered wages. If the perk constitutes an economic gain, then it is wages.

There are three conditions to when non-wage payments can count as wages under the Nebraska workers compensation act. The first is that the perk or benefit has to be agreed upon in advance. Occasional gifts from an employer to employee probably don’t count.

Secondly case law indicates that the benefit needs to flow directly to the employee. For example, a pension benefit paid by the employer to the employee’s union does not count as wages. Does the same logic apply to health insurance premiums paid to an insurer? Does the same logic apply to payments made by an employer self-insured for health insurance? Does the same logic apply to an employer-match to a defined contribution retirement plan such as a 401k?

Finally, the payment of perk or benefit may not be counted as wages even if it meets the first two conditions if a court determines that it represents a windfall to the employee or distorts their earnings. This is a case by case decision. In my view any concerns about “windfalls” need to be counter-balanced with arguments about how Nebraska law is designed to underpay injured employees in many circumstances.

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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Retail jobs surpass manufacturing jobs in injury rate

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What’s a more dangerous job, working in retail or working in a factory?

Most would say manufacturing, but according to the Bureau of Labor Statistics, retail jobs had a higher incidence of lost time work injuries than manufacturing in 2018.

If you read this blog on a regular basis, you know about the danger of retailing jobs. The workers’ compensation blogosphere runs “the dangers of holiday jobs” posts over the holiday season on a yearly basis to talk about risks of holiday employment in retail.

While automation, think self-checkouts, has eliminated some retail jobs, the remaining retail jobs usually require at least a 50-pound lifting restriction. Online shopping and competition from Amazon, means that more retail employees perform heavier and more dangerous warehousing and delivery tasks. The increased injury rate in retail work also means that more injured employees may be placed in light or alternate duty attendant jobs like the famous Walmart greeter job.

Workers’ compensation lawyer bloggers tend to write about jobs with high injury rates. But the story of retail employment isn’t just a question of retail work becoming more dangerous, it could also be caused by manufacturing jobs becoming less dangerous.

A recent article in the Wall Street Journal predicted that within a few years, the majority of manufacturing employees will have a college degree. The changing demographic of manufacturing employees is explained by increasing investment in manufacturing technology that will turn many manufacturing workers into machine operators who require specialized skills.

In theory — and practice – this investment in technology should make manufacturing jobs safer. But manufacturing jobs will still be more hazardous for the foreseeable future. Some investment in manufacturing technology involves cobbling together 2010s (and soon 2020s) software on top of machines built and designed in the 1960s. The dangers of this approach were exposed by two crashes involving the Boeing 737 Max. The 737 Max is an example of the hazards that workers’ can be faced with when companies mix 20th and 21st century technology.

New manufacturing technology may also fail to take human factors into a consideration. An expensive new piece of machinery may increase productivity, but it may still require heavy lifting from a worker to process inputs.  The new manufacturing economy probably won’t be as safe as portrayed in the pages of the Wall Street Journal and other publications targeted at wealthy professionals. Meanwhile, retail employment may be more dangerous than commonly understood.

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 potholes are a workplace safety issue

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Most people consider potholes an annoyance, but for many workers they can be s serious safety risk – a safety risk that can lead to a work injury and a workers’ compensation claim.

While potholes are generally thought about as a symptom of cold weather in northern states, potholes are an all-weather hazard for workers because of how they are created.

Potholes: weight and water

Weight put on asphalt by vehicles eventually causes pavement to break down and cause holes. Potholes are prevalent in areas high traffic and heavy vehicles. That’s why parking lots, truck stops and areas around warehouses and delivery docks can be particularly bumpy.

If you combine high traffic with heavy moisture and or freezing water, you have a recipe for slips, trips and falls for those who must walk on potholed surfaces.

Potholes: weight times speed

Potholes can also cause injuries to drivers who strike them. The faster and heavier the vehicle the greater the impact. This is particularly true for drivers of heavier vehicles like semi-trucks driving highway speeds. It is not uncommon for truckers to get lower back injuries from striking potholes

Remedies for pothole injuries: Workers’ compensation, personal injury and whistleblower claims

If you get hurt at work because of a pothole that should be covered by workers’ compensation. Even if a worker who works inside, they should be covered by workers’ compensation if they slip and fall on premises while working into work. It’s a closer legal call if the employee is walking from off-site parking or is walking outside during a break.

If you are a trucker who hit a pothole, be sure to tell your dispatcher or safety what happened. Also if you go to a doctor – particularly if it is in some random emergency room – be sure to mention hitting a pothole. Pothole injuries have a way of being ignored, so make sure you report them to help your case for workers’ compensation benefits.

If you are hurt on the job, but you fall due to a pothole on another businesses property, you could have a negligence claim against that business. The legal term for a case like this is a third-party claim. In a third-party claim, you can collect both workers’ compensation benefits and be paid by the at-fault party. But if another party is at fault for a work injury, your workers’ compensation insurer has some right to be paid back from the proceeds of the negligence claim.

Whistleblower claims

OSHA requires employees provide a workplace free of recognizable hazards. OSHA has cited employers for employee injuries due to potholes.  Nebraska allows employees to sue their employers for retaliation if they report conduct they believe to be unlawful under state or federal law. So in Nebraska, an employee who is retaliated against by their employer for reporting an injury due to a pothole could bring a statutory whistleblower claim against their employer as a well as a common law case.

An employee could also bring a federal whistleblower claim depending on their employer as well under a federal law like the Surface Transportation Amendments Acts (STAA) which covers workers’ in the transport industries.

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.

This entry was posted in third party claims, Whistleblower, Workers' Compensation.

Workplace deaths increase in Nebraska during 2019; work comp benefits set to increase in 2020

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The Nebraska Workers’ Compensation Court reported workplace deaths increased from 41 to 54 over the last fiscal year. Workplace deaths increased in Nebraska even as the overall number of reported work injuries declined.

The findings were included in the annual report of the Nebraska Workers’ Compensation released on Monday.

I think its’ important to note that the number of First Report of Injuries is just an estimate of work injuries in Nebraska. Filing a first report isn’t an admission of a work injury by an employer. On the flip side some employers under-report work injuries, so the number reported by the court could either overestimate or underestimate the number of work injuries in this states

Statistics from one year from one state may not indicate any kind of trend about workplace deaths or work injuries. Workers’ compensation laws vary from state to state. Statistics from the federal Bureau of Labor Statistics (BLS) probably give a better picture of national trends but, their reporting lags behind one fiscal year. In the most recent reported year, Fiscal Year 2018, the BLS showed a 2 percent increase in workplace fatalities.

But even if the increase in workplace deaths in Nebraska isn’t significant from a statistical point of view, workplace deaths are tragic for the families affected. I’ve written previously about how the workplace injury and death survivor group, USMWF has started to lobby for better workplace safety and workers’ compensation laws.

 

Maximum benefit rates increased for 2020

The Nebraska Workers’ Compensation Court announced the maximum weekly benefit will also increase from $882 to $855. Nebraska law adjusts the maximum wage rate along with increases to the state’s average wage rate.

While the increase in maximum benefits in Nebraska is routine, that is not the case in every state. In 2017, a judge in Alabama ruled portions of their workers’ compensation law was unconstitutional because maximum benefits had not increased since 1987.

Interestingly enough, the court has not announced the mileage rate for 2020. That number is based on the IRS rate which has not been announced yet. The current mileage rate is $.58 per mile.

Transportation cost is one factor in determining how disabled injured workers are in Nebraska. Much litigation centers on whether it is cost-effective for a worker living in a remote area to commute to a more populated area for work. The cost of a commute, as determined by the mileage rate, in proportion the wages earned is a crucial question.

In 2019, the cost of transportation increased faster than the increase in average wages in the state. In practical terms, this would mean an injured worker might reasonably expected to commute a shorter distance. But mileage costs can vary from year to year, while the maximum benefit as average wage tends to increase steadily. Mileage reimbursement was only 5.4 percent higher in 2019 than it was in 2009. In contrast, the maximum benefit increased 27.4 percent over the same period.

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 regional discrimination is a (legally actionable) thing in China, but not in the U.S.

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A Chinese woman from Henan province successfully sued a company in Hangzhou province for denying her a job based on status as a resident of Henan province.

To put this in American terms, this would be the equivalent of someone from West Virginia or Kentucky winning a case against an employer in New York or California for denying them a job based on them being from West Virginia or Kentucky.

State or regional discrimination claims would not succeed under U.S. law. State and regional discrimination is also less of an issue in the United States than it is in China. A comparison of legal systems between the two countries can help us understand why.

China v. United States Part 1: Just Cause v. At-will

In order to fire an employee in China, an employer generally needs to prove good cause. In the United States an employer can fire an employee at any time for any reason. This is called “employment at-will” and I’ve discussed the topic extensively. In short. American courts are reluctant to intervene in the employee-employer relationship barring some explicit statutory or case law authority giving them power to do so. State citizenship or regional background is not one of those reasons.

Chinese courts aren’t bound by the employment at-will and have more leeway to second guess employment decisions. A Chinese court is free to decide that not hiring someone because of provincial origin is unlawful even without any express legal guidance on the issue. Chinese law also provides discrimination protections for workers in rural areas seeking employment in urban areas.

China v. U.S. Part 2: Hukou v. Article IV

Regional discrimination is a more contentious issue in China because of the hukou system which limits the abilities of Chinese citizens to migrate, contract and own property within China. In contrast, Americans have the right to travel, work and contract anywhere in the United States. This freedom is guaranteed by the so-called privileges and immunities clause of the United States Constitution at Article IV, Clause 1. The privileges and immunities clause also limits the ability of U.S. states to discriminate against the citizens of other states.

So in essence, U.S. law severely limits discrimination based on state origin by governments, but permits private parties to discriminate on that basis in the workplace. In contrast, Chinese law approves of government discrimination based on provincial (state) origin, but is more willing to limit such discrimination between private parties 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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UPS far from the only employer under-reporting workers’ compensation claims

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Fatima Hussein wrote a well-reported story for Bloomberg Law about UPS discouraging or under-reporting workers’ compensation claims.

This practice is sometimes known as claims suppression. Claims suppression is a common issue in workers’ compensation. Lawyers from coast to coast, Tara Reck in Washington state and Jeff Blackwell in Alabama, have recently written about the topic.

Washington state, to their credit, formally recognizes the concept of claims suppression in their law and identifies the practice. In Washington, employers guilty of claims suppression can be civilly fined. Employees can also apply to their workers’ compensation board to extend statute of limitations if claims suppression lead them not to file a claim.

Claims suppression in Nebraska

Though Nebraska doesn’t formally recognize the term claim suppression in our law, we have similar remedies to Washington state for the practice. Employers can be prosecuted for the misdemeanor of not filing a first report of injury with the Nebraska Workers’ Compensation Court. The failure of an employer to file a first report of injury also automatically extends the two-year statute of limitations to file a petition in the Nebraska Workers’ Compensation Court.

In my view the penalties for claims suppression in Nebraska are weak. I am unaware of any times where an employer was prosecuted for claims suppression in Nebraska.

Fighting claims suppression in the civil justice system

But I am a skeptic of criminalizing workers’ compensation — which at its core is a contractual issue between an employee and their employer. My view is that employees are more vulnerable to prosecution than employers. Since workers’ compensation is stigmatized, workers’ compensation fraud by employees is viewed as a variant of welfare fraud. Welfare fraud is prosecuted aggressively in many jurisdictions.

I believe that the civil justice system is a better forum for wrongs done in a commercial transaction. But many barriers exist to employees being able to bring civil claims for workers’ compensation claims suppression by their employers. The first barrier is the fact that workers’ compensation laws are the exclusive remedy for workplace injuries. For example, in Nebraska an employee can’t bring a bad faith action against their workers’ compensation insurer because their remedy for bad faith is the penalty and fee statute under Neb. Rev. Stat. 48-125.

The employment at-will doctrine and claims suppression

A related barrier to bringing civil claims for claims suppression, is the growing reluctance of courts to allow employees to sue their employers. I believe this is because of the overwhelming power to the doctrine of the employment at-will doctrine.

Claims suppression cases are often brought as retaliation cases. Earlier this year, a federal court in Pennsylvania narrowly interpreted Pennsylvania’s prohibition on workers’ compensation retaliation to rule against an employee. That case turned on the court finding the receipt of workers’ compensation benefits wasn’t actually claiming workers’ compensation benefits, so the employee wasn’t being retaliated against when they were fired after their work injury. The court’s narrow construction of Pennsylvania’s anti-workers’ compensation retaliation is based on the importance of the employment at-will doctrine.

Arguably in cases where an employee doesn’t file a claim because of claims suppression, then a court can find the employee isn’t being retaliated against because they never filed a claim in the first place. Recognizing a civil action for claims suppression requires more legal creativity than many courts are willing to give an injured employee.

But just because bringing a claim for claims suppression is difficult doesn’t mean that some lawyers aren’t trying. The Bloomberg article quotes Paul Taylor of the Truckers Justice Center, a nationally recognized expert on retaliation claims under the Surface Transportation Amendments Act (STAA) retaliation claims. Workers’ in industries covered under the STAA could bring suppression claims under the STAA. These claims have a more favorable burden of proof for workers’ than typical civil rights claims.

The Bloomberg story also mentions cases for workers’ compensation that have been brought under California state law. But, California state law is considered to be one of the most friendly for employees in the nation. I question what weight a Nebraska court would give to a ruling made under California law.

Ultimately claims suppression will probably have to be addressed by state legislatures as workers’ compensation laws are state laws. State legislatures can increase the penalties for claims suppression and create private causes of action for workers’ compensation claims suppression by statute. If federal minimum standards for workers’ compensation get momentum in Congress, stronger anti-claims suppression laws should be part of those standards.

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 AB5 could survive

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Last month gig economy companies like Uber announced a petition drive to repeal Assembly Bill 5 (AB5) which expanded workers’ compensation benefits and other employment protections to gig economy workers and others in California.

AB5 should increase workplace protections for Lyft and Uber drivers, but what can California’s previous attempts to help professional drivers tell us about the future of AB5? It may explain why the gig economy companies are working at a state rather than the federal level. 

Rest breaks for truckers

California amended their wage and hour law to require employers give truckers a break after five hours of service. That law offered more protections than federal law, At the end of 2018, the Federal Motor Carrier Safety Administration ruled that California law on breaks was preempted by federal law.

There is nothing new about employers running to the federal government to undo state laws that improve workers’ rights — those efforts date back at least to the Dred Scott decision in the 1857.

So what are the chances that AB5 will suffer the same fate as California’s efforts to insure fair pay and working conditions for truckers? I think AB5 will be harder to undo on a federal level for a few reasons.

Federalism issues

Preemption of federal law by state law has a better chance of succeeding if there is a strong constitutional basis for federal regulation. In the case of trucking, the interstate commerce clause gives the federal government a solid basis for regulating trucking. It’s easier to argue that federal law should preempt state law in an industry that clearly falls within Congressional power to regulate.

In contrast, workers’ compensation laws are state-based laws enacted under state police powers. Workers’ compensation is a form of insurance and Congress has largely delegated insurance regulation to the states. So at least for the workers’ compensation provisions of AB5, I believe there is almost no chance that federal courts would rule that part of the legislation would be preempted by federal court.

Political reasons

The reason the trucking industry had to rely on a ruling by the FMSCA to invalidate California’s law on detention pay for truckers, was that it was unable to get the so-called Denham amendment passed.  In other words, the trucking industry failed to change the law legislatively, so they ran to the executive branch rule making process to get what they wanted.

I started paying close attention to worker classification and portable benefit schemes as they related to the gig economy in 2015. I read a paper from the Democratic-leaning Hamilton Project promoting portable benefit schemes for gig economy workers. Part of that paper included a quote from former Treasury Secretary Bob Rubin stating that there needed to be reform of labor laws for the 21st century. Rubin was an architect of financial deregulation in the 1990s, so the idea of him doing the same for labor laws horrified me.

What horrified me was the prospect of Wall Street and Silicon Valley influenced Democrats working with Republicans in some “grand bargain” or feat of “bi-partisanship” to hammer the coffin nail in state workers’ compensation laws from a federal level.

But if the trucking industry can’t even pass the Denham amendment. (BTW Representative Jeff Denham was defeated in 2018), a federal grand bargain on the gig economy seems far-fetched. The Democratic Party, at least on paper, has become a stronger supporter of worker rights over the last four years. Labor militancy has made a comeback in the last four years.  The tech industry has also seen its reputation and popularity lag over the last four years.

Gig economy companies are still attempting to weaken America’s already weak employment laws, but the passage of AB5 in California shows their efforts can by stymied. 

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.

This entry was posted in Uncategorized.