Does the “managers rule” greenlight retaliation against whistleblowers?

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Whistleblowers are supposed to be able to report illegal activity by their employers free from fears of retaliation. But what if complying with laws is part of your job as a manager or human resources professional? In that case the managers rule may apply and your protections as a whistleblower may be severely curtailed or non-existent.

What is the managers rule?

The managers rule is a creation of federal judges. It holds that employees whose job it is to comply with laws, typically managers and those employed in human resources, can’t be whistleblowers. The reasoning behind this rule is that allowing managers to be protected for reporting information that is part of their job would create too much litigation and make it harder to fire these employees.

Does the managers rule apply in Nebraska?

I am not sure, but I wouldn’t bet against the proposition. The 8th Circuit Court of Appeals, which Nebraska is part of, has applied the managers rule in federal whistleblower cases and in other state whistleblower laws decided under diversity jurisdiction. The 8th Circuit Court of Appeals recently remanded a whistleblower case under the Nebraska Fair Employment Practices Act to state court to determine whether the managers rule applies under Nebraska law.

However, Nebraska state courts tend to follow the 8th Circuit in interpreting fair employment laws, so it is very possible the Nebraska Court of Appeals or Nebraska Supreme Court would adopt the managers rule.

How does a whistleblower get around the managers rule?

I think there are two ways. One way is to show by an employee’s actual job duties that they aren’t covered by the rule. A California federal court did this recently in Kailikoke v. Palomar Community College. The Kailikoke court noted the manager rule wasn’t supported by the text of any statute and would exclude many workers from anti-retaliation laws.

Secondly, even if you concede the managers rule applies an employee who steps outside of their typical job duties to report employer misconduct is still protected by whistleblower laws. In Kelley v. Iowa State University, the Southern District of Iowa, found that a Title IX compliance officer had stepped outside of her role in refusing to implement policies ordered by the University. The court also found that she stepped outside of her role because the school undermined her position.

Employment at-will and the managers rule

The Kailikoke court is right holding that the managers rule isn’t supported by statute. But the managers rule is supported by the employment at-will doctrine. The employment at-will doctrine is a judge-made creation that gives employers almost free reign to fire employees. Ronald Standler’s article on the history of the doctrine is a must read.

Of course anti-discrimination and retaliation statutes limit the powers of employers to fire employees. But in order to uphold the employment at-will doctrine, courts create other rules like the managers rule to minimize the impacts of these laws.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Employees can’t count on worries over bad publicity to get a good outcome in a case against an employer

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“They aren’t going to want the publicity.”

In my experience, this phrase is right up there with “This isn’t about the money” when it comes to red flag phrases from potential clients looking for legal representation in a case against their employer or former employer in a wrongful termination or discrimination case.

Like a lot of common misconceptions about the legal process, “They aren’t going to want the publicity” is based on some truth that is stretched beyond reality. Companies like to keep litigation or disputes with former employers private. Employers usually demand confidentiality to settle cases out of court. Sometimes even routine company documents are subject to protective orders from courts.

But the threat of bad publicity is almost never sufficient to settle a dispute with employee quickly and on favorable terms to an employee. This post is about detailing some of those reasons.

Is your dispute with your employer newsworthy? In other words, why would anyone else be interested in what happened to you at work? If the mistreatment is based on something like sex, race, religion or disability, etc. you at least get your foot in the proverbial door. Same if you are opposing some unsafe or unlawful practice by your employer. But if your mistreatment is more or less a personal dispute between you and your boss or you and your co-workers, it’s not news.

Not all news is fit to print – Let’s say you have a legitimate legal case against an employer or former employer, does that mean the media will be running to put a microphone in your employer’s face? If what you are alleging is common place or typical then probably not. Maybe if something happens in your case like a favorable decision on a motion or verdict, then maybe that will merit some media coverage. But most civil cases don’t garner media attention based on merely filing a lawsuit.

Less news is fit to print nowadays – There is less coverage of local news due to the decline of local newspapers. So even if you have a strong legal case that may have some public interest, there are fewer reporters that would be able to cover your case. Early in my practice, up until about 2010, the local Associated Press would call me routinely about filings in my federal employment cases. Not anymore. Newsworthy cases may now get picked up in outlets like Law360 or Bloomberg Law that are read by lawyers, but it’s less common to read about civil cases in general publications.

Negative publicity is far from fatal for major employers – So let’s say that your case against your current or former employer garners some media attention and that attention is unfavorable for your current or former employer. If it’s a major employer, they likely have a public relations department to spin the story and more importantly create an ongoing stream of positive coverage that overwhelm the negative news about your case. Major employers also spend on advertising and corporate philanthropy to bolster their image. So the negative press from your claim, may be entirely cancelled out by what a companies efforts on advertising and public relations. Bluntly, major employers budget substantial sums to fight negative publicity.

Negative publicity may not change how your employer does business– Sometimes employees want employers to change how they do business. Maybe you can do that through litigation, but actions like collective bargaining and political organizing are the more effective in accomplishing those ends. But again, major employers already spend large sums of money on regular basis on the political process through lobbying and campaign contributions.

In short, employment law cases are about employees trying to correct harms done when their employers violate employment laws. While these harms can be newsworthy, they rarely garner media coverage. Even when they do, that media coverage usually doesn’t lead to substantial changes from employers without organized and sustained pressure. The potential bad publicity for the mistreatment of an individual employee is not going to lead to those changes in and of itself. An employee seeking justice, financial or otherwise, from mistreatment in the workplace is likely going to be in for relatively long-hail.

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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What renewed concerns over inflation could mean for analyzing loss of earning power in workers’ compensation

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Last week the United States Department of Labor announced inflation reached a 30 year high. Here in Nebraska, the Governor announced a $8 p/h or 40 percent pay increase for corrections officers. But how could eye popping wage increases and renewed attention to inflation impact workers’ compensation in Nebraska?

Back in February, I wrote a post about a Mississippi decision that took wage inflation into account when determining loss of earning power. Loss of earning power determines how permanent disability (and sometimes temporary disability) are paid. Put another way, the Mississippi court held that just because overall wages increase that doesn’t mean an employee’s earning power increases along with wages. After all, earning power is a measure of an employee’s ability to compete for jobs not necessarily wages earned.

The issue of wage inflation matters in workers compensation because workers are often stuck with benefit rates based on their wages at the time of the accident. In some cases, loss of earning power, or how the injury impacts their ability to work may not be decided until a few years after the accident,

Put yet another way, employers try to use wage inflation to reduce loss of earning power benefits. In times of more moderate inflation, it seemed as if some courts would adopt those arguments.

But with renewed attention to inflation and news of major wage increases, hopefully workers’ compensation courts will start raising an eyebrow when an employer argues that wages have increased for an injured worker since the time of their injury.

In Nebraska, loss of earning power is often calculated by vocational counselors who write loss of earning power assessments. I used a wage inflation argument to get a counselor to nudge up a loss of earning power assessment for a lower wage worker with a small amount of loss of earning power. I was also using wage inflation data between 2018-2020 before the post-pandemic labor shortage really took effect.

The state of Nebraska will announce wage inflation numbers 2021 shortly and those will be adopted by the Nebraska Workers Compensation Court. My educated guess is that plaintiffs should be able to use these numbers to push up the value of loss of earning power assessments further. Every 10 percent of loss of earning power is worth $12,000 to a worker making $15 p/h on a 40 hour week.

Wage inflation should become a good argument for plaintiffs in workers compensation cases.

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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Workers comp issues during the holidays

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I spent part of a “nearly summer-like” Sunday putting up Christmas decorations last weekend, so it’s time to talk about some holiday season workers’ compensation topics.

More falls when you fallback? If you are like me, you probably feel a little off the Monday after a time change. But does feeling a little off lead to more work injuries or accidents?. Studies say that while losing an hour of sleep during the spring ahead leads to more injuries, falling back in the fall doesn’t lead to more injuries. Experts believe this is because the fallback means people don’t lose sleep. (Parents of young children and pets may beg to differ about an extra hour of sleep)

But studies also indicate that more car accidents take place at sunset and more take place in the autumn than in the spring. I will often travel to points in central and western Nebraska from Lincoln during afternoon and night hours. I am glad I don’t have any road trips planned this week.

Holiday job injuries – While statistics may not bear out a correlation between the fall time change and work injuries, statistics do show new employees are more vulnerable to work injuries. During the holidays many people take on holiday jobs.  Holiday jobs are increasingly delivery and warehousing jobs that have a higher injury rate than traditional retail jobs. So in short, many workers may be more vulnerable to work injuries over the holiday season. Unfortunately, workers hurt doing a part-time or second job are limited to disability benefits based on those wages rather than on any income loss at their main or full-time job.

Voluntold workers – I saw and heard my first Salvation Army bell ringer today. Last year I wrote about how The Salvation Army partners with insurers and employers to employ injured workers as “volunteer” bell ringers. These assignments are particularly popular with employers that lack light or alternative duty programs.

I would imagine that these programs could become more popular due to business concerns over alleged labor shortages. If you can’t find workers to do jobs, you can always try coercing injured workers with the prospect of losing their workers’ compensation benefits and their job for refusing a volunteer assignment.

I went off on these arrangements last year. In short, their benefits are oversold and they create lots of practical problems for injured employees. They also re-enforce the power imbalance between injured workers and employers.

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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Does implementation of OSHA COVID vaccine rule subtlety undermine workplace safety and signal broader move to weaken workplace rights in light of pandemic?

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Bloomberg News reported that employees who refuse vaccinations under the proposed OSHA COVID vaccination rule could be forced to pay for COVID testing and masks.

While many liberals may cheer this result, former Obama administration OSHA official Jordan Barab blogged that forcing employees to pay for protective gear satisfies a long-standing demand from business.

Barab also pointed out that exempting companies that employ under 100 workers from the vaccine rule is unprecedented for OSHA. OSHA safety rules typically apply to all employers regardless of size.

While OSHA fines could increase as part of the reconciliation bill, OSHA’s proposals to shift protective gear costs onto employees and exempt small employers from  is a disturbing trend. Barab described them as a “camels nose under the tent” for business interests.

I agree with Barab, but I have some other reasons why I don’t like how the proposed vaccine rule could be implemented by OSHA.

Effects on workers compensation?

Like OSHA standards, workers compensation laws apply broadly to employers regardless of size. But if smaller employers are exempted from OSHA requirements, these employers may ask why they are required to carry workers compensation insurance.  OSHA regulations and workers compensation laws both regulate workplace safety. If OSHA concedes their regulations are too burdensome for small employers, it could be hard to convince state legislators that workers compensation laws aren’t overly burdensome for smaller employers.

Legal backlash against COVID denialism

Back in August 2020, I wrote about how I thought backlash against COVID deniers could build support to weaken laws that protect employees. The proposed implementation of the OSHA vaccination rule is one example of this phenomenon.

The Supreme Court will hear a challenge to the Rehabilitation Act filed by CVS Pharmacy that could end up substantially undermining the Americans with Disabilities Act. Business wanted to weaken the ADA before the pandemic. Some challenges to vaccine mandates are likely to come under the ADA. Decisions in those cases may accelerate the undermining of the ADA desired by business interests before the pandemic.

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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State challenge to OSHA COVID rules could narrow path for whistleblower plaintiffs

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Nebraska Attorney General Doug Peterson announced last week that he would likely challenge proposed a OSHA rule requiring employers with more than 100 employees to require COVID vaccinations or testing.

I suspect this challenge may weaken protections for whistleblower employees who report their employers to OSHA for not following OSHA rules on COVID vaccination and testing. Here is the why and how I think state challenges to federal rules on vaccination and testing could undercut whistleblower protections in Nebraska.

OSHA is going to rely on whistleblowers to enforce the vaccine and testing rule due to understaffing. Typically an employee who makes a report to OSHA can’t file their own lawsuit against their employer if they are retaliated against for making the report.

But in Nebraska, employers have a right to sue their employers for conduct that violates state or federal law under Neb. Rev. Stat. 48-1114.

In a typical retaliation case an employee has to show that 1) they engaged in a protected activity 2) their employer took some adverse action against them and 3) there is a causal link between the protected activity and the adverse action

At least under current Nebraska law, employees just need to have an honest or good faith belief that their employers conduct violates the law to have their report of unlawful activity to be a protected activity.

The potential problem for Nebraska employees seeking protections for reporting their employers to OSHA for not following the vaccine rule, is that a state law challenge to the rule blurs the lines whether the conduct they are opposing is plausibly unlawful.

Employees don’t have protections for reporting what courts deems as bad acts that aren’t illegal. Furthermore, courts in Nebraska hold that they aren’t going to second guess personnel decisions barring some evidence of discriminatory intent under the employment at-will doctrine. So, not surprisingly, employers typically fight the issue of whether their employee was engaging in a protected activity at all. Courts will sometimes agree with employers on this argument

I believe an employee can still meet a good faith standard by arguing they were opposing conduct that is unlawful under federal law. But a state law challenge to a federal rule on COVID vaccination and testing could narrow an already narrow path to a successful retaliation case for a whistleblower in Nebraska.

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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Neb. Rev. Stat. 48-146.02: Useful tool for workers or another yipping porch dog?

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Injured workers covered by the Nebraska Workers’ Compensation Act can’t sue their insurers/claims administrators for bad faith handling and denials of workers’ compensation claims. Injured workers are stuck with the fee and penalty provisions under Neb. Rev. Stat. 48-125 which one former judge referred to as an ineffectual “yipping porch dog.

But I participated in some discussion with other Nebraska lawyers about another way to discourage bad faith handling of workers’ compensation claims: Neb. Rev. Stat. 48-146.02.

Neb. Rev. Stat. 48-146.02

48-146.02 allows a three judge panel of the Nebraska Workers Compensation Court to revoke self-insurance for privileges for employers or recommend to the Department of Insurance that they revoke the ability of a workers’ compensation insurer to do business in Nebraska. The three judge panel can act if they hold a hearing and find that an insurer/claims administrator fails to comply with their obligations under the Nebraska Workers’ Compensation with such frequency that it finds it to be a general business practice.

But even if a party succeeds in a claim there is no mention of any way for a successful claimant to be paid anything in the way of a penalty, attorney fees or a liquidated damage. The language of 48-146.02 would also indicate that a case under 48-146.02 would probably have to involve multiple parties alleging similar conduct by an insurer or claims administrator.

Could a group of plaintiffs bring what amounts to collective or class action case in the Nebraska Workers’ Compensation Court against an insurer for bad faith under 48-146.02? Yes, I think there is a path.

Neb. Rev. Stat. 48-162.03 give parties broad ability to file motions with the court. The language of 48-146.02 refers to making a motion to a three judge panel rather than filing a petition.

NWCC Rule 3(k) allows the court to consolidate similar causes of action. So sure, I think a group of plaintiffs could bring a case under 48-146.02, but there would be no financial benefit to the parties bringing those claims under current law.

48-146.02 allows the Nebraska Workers’ Compensation Court administrator to request the Attorney General file a motion with a three Judge panel. But that means a group of wronged plaintiff’s need to persuade the 1) the court administrator and 2) the Attorney General to pursue the case just to get a hearing.

In my mind, a simple bad faith tort action filed by an individual plaintiff wronged by an insurer or claims administrator is a more effective deterrent against bad faith insurance practices in workers’ compensation than either a multi-layered administrative process or what amounts to a pro bono class or collective action 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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Appeals court brings back wage case for Lincoln, Omaha Nelnet call center workers

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A federal appeals court stated a $.48 per day wage loss was enough for a group of workers to bring a wage and hour case

The 10th Circuit Court of Appeals reversed a finding made by a Colorado federal court that Nelnet employees in Omaha, Lincoln and Aurora, Colorado were not entitled to pay for the time they spent booting up their computer.

More specifically, the appeals court held that the Fair Labor Standards Act de minimis exception did not apply to call center workers that helped Nelnet collect student debt.

In a relatively simple terms, the trial court found that Nelnet call center workers were performing work for the purposes of the Fair Labor Standards Act when they booted up their computers and computer programs before shift. But the time they spent was 1) too hard to measure for the company and 2) too small an amount of time to count as a matter of law.

In the case, the court estimated workers lost $.48 per shift for time spent waiting for a computer and programs to boot up.

The 10th Circuit Court of Appeals reversed the decision and gave a good explanation of how the de minimis exception works. In order for the de minimis exception to apply there is a balancing test that takes into account three factors 1) ability to measure the time 2) amount of money lost and 3) whether the time not paid was part of regular duties.

It was undisputed that the time booting up time was part of regular duties. This was important for the employees. The appellate court found the defendant couldn’t argue that keeping track of time was too difficult when they had estimated it for the purpose of the case.

The court also found that the losses for the employees were not negligible. The court noted that $.48 per shift works out to $125 per year which is a meaningful amount of money for employees who were earning $13.50 per hour.

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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