Author Archives: Jon Rehm

Medicaid Cuts Will Cause More Nursing Injuries

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While efforts to repeal the Affordable Care Act and cut Medicaid appear to have stalled for now, any successful effort to cut Medicaid will adversely impact workplace safety for nurses and nurse’s aides.

Studies by the National Institutes of Health show that reductions in Medicaid funding leads to less staffing at long term care facilities and that lower staffing leads to more injuries for nursing employees. Since most nurses and nurse’s aides are covered under state-based workers compensation laws the additional costs of work injuries from Medicaid cuts may not be fully accounted for on a federal level.

At least in Nebraska nursing employees have some ways to protect themselves when advocating for safer working conditions even if they do not belong to a union.

Nebraska has a whistleblower law that applies specifically to health care workers, including nurses. The benefit of this act is that it allows employees to recover for damages similar to what they could collect under the Nebraska Fair Employment Practices Act, including front pay and possibly attorney fees, without having to exhaust administrative remedies. Additionally, health care workers would have four years to bring a suit under the health care whistleblowers law, rather than the much shorter and complicated statute of limitations under the Nebraska Fair Employment Practices Act.

Nebraska has a broad general whistleblower law that allows employees to oppose unlawful conduct by their employers. Nebraska law requires that nursing homes to be adequately staffed. Federal law also requires that employers provide a workplace to be free of recognizable hazard. Inadequate staffing would certainly be deemed be a recognizable hazard in a nursing home. The only drawback to Nebraska’s whistleblower law is the short and potentially uncertain statute of limitations.

Nebraska law would also allow nurses reporting inadequate staffing to be protected from retaliation under a public policy claim that also has a four year statute of limitations.

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

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Law Promoting Openness Regarding Pharmacy Benefit Managers Meets Industry Resistance

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A North Dakota law attempting to promote openness about fees and prevent conflicts of interests with so-called pharmacy benefit managers (PBM) would seem non-controversial.

Non-controversial to everyone besides lobbyists for the PBMs who have sued the State of North Dakota in federal court claiming this commonsense legislation harms patient safety and is unconstitutional.

The North Dakota suit matters in the world of workers’ compensation because PBMs are an essential component of drug formularies which are popular with workers compensation insurers and have been touted as a way to prevent opioid abuse and control drug costs. Formularies are a list of approved drugs and dosages. Formularies are administered by the PBMs who buy the drugs, allegedly at a discount, from drug companies and pass along those savings onto users.

Drug formularies have come under criticism for issues addressed by the North Dakota legislation. First, a PBM may have a relationship with a particular drug maker which means that drugs are picked on for business reasons rather than medical reasons. Formularies also may not control drug costs as advertised.  In response to a drug formulary bill in Nebraska last session, the City of Omaha was concerned that formularies might increase drug costs because of the inability to use generic drugs.

Related to that concern, PBMs have been criticized for their role in helping drug companies pass along higher drug costs to consumers. PBMs are paid on what the discount they can negotiate, so drug companies have an incentive to inflate drug costs which benefits PBMs.

Lawmakers on a state or federal level are correct in having concerns about PBMs if they want to address drug costs and opioid use. The PBM industry has argue that state laws are “pre-empted” by federal laws regulating prescription drugs, so state laws are unconstitutional. Pre-emption is premised on the fact that federal laws are superior to state laws if there are federal and state laws on both subject matters.  Recently the U.S. Supreme Court has used pre-emption to strike down state-based consumer protection laws in favor of corporate defendants. The threat of successful litigation may scare states, especially smaller states, from passing laws to regulate PBMs.

But state laws regulating the use of PBMs in the context of workers’ compensation may be easier to defend from a legal standpoint. Workers compensation laws are enacted under a state’s police powers under the 10th Amendment. The constitutional basis of workers’ compensation laws is arguably a fluke of legal history but workers’ compensation is traditionally seen as a state law concern so federal courts may be less to strike down laws regulating PBMs in the context of workers’ compensation.

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

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“They have a mosque in small town Nebraska?”

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Islamic Center of Omaha

I spent a lot of time in rural Nebraska, so I have enjoyed following Chris Arnade’s tour of the forgotten parts of rural America. His tweets are a highlight of a Twitter feed filled with self-promotion and nasty bickering.

On July 3rd, Arnade made it to Nebraska and stopped in a place I know fairly well, Lexington, Nebraska.

Lexington is home to Tyson beef packing plant that employees roughly 3500. I have been travelling to Lexington since 2006 to represent clients who have been hurt at Tyson and other employers. My father Rod, has been doing the same thing since about 1990.

Like many other outside observers of Lexington, Arnade’s attention was drawn to the presence of a large Somali community in Lexington Arnade and other commenters immediately drew the connection between the Tyson plant and the Somali population. Comments about the Somali population in Lexington broke down into three categories:

  1. Vile racist alt-right comments.
  2. Comments from “locals” like me that amounted to “This isn’t news to us” but that were sympathetic towards immigrants.
  3. Comments that were generally sympathetic to the immigrant population made by commenters from coastal and urban areas.

The first group of comments doesn’t deserve a response. The more sympathetic comments from urban areas do deserve a response. Underlying the well-intentioned sympathy for immigrant meat packing workers in rural areas is an assumption that these immigrants are doing work that native-born workers refuse to do.

This assumption is not true. I can argue this anecdotally because I have represented several native-born Americans in meat packing cases over the years. But there are other explanations of why meat packing plants in rural areas hire a substantial number of immigrants.

The first reason is population. Rural areas have a difficult time finding employees to fill highly-paid professional jobs. Meat packing doesn’t pay particularly well and is notorious for being hazardous. A combination of dangerous work and a small population base makes even good paying jobs difficult to fill. As an example, Nebraska placed a maximum security prison in rural Tecumseh, Nebraska in 2001. The combination of dangerous work and the lack of nearby workers has contributed to chronic staff shortages at Tecumseh. Large meat packing plants in rural areas need more labor than those rural areas can provide on their own. Immigrants help fill the need.

Meatpacking plants also draw in native born workers for urban areas. I recently represented a man from Denver whose wife was from New York City who worked at a packinghouse in rural Nebraska. His family didn’t want to move to an urban area because of crime and a higher cost of living. My client is representative of many former urbanites who have moved out of cities into urban areas. Much attention has been drawn recently to the drastic decline of the African-American population in Chicago. The decline is attributed to crime, the cost of living and lack of jobs in Chicago. Again, anecdotally, I have represented several transplanted Chicago residents in Nebraska workers compensation claims over the years. Former Chicago residents are making their home in rural Nebraska for the same reasons that immigrants are: lower cost of living and the availability of jobs

Despite the overwhelming evidence that native born employees are willing to work in meatpacking, the myth that only immigrants work in meatpacking is persistent. The persistence of this myth rests on several assumptions. The first assumption is based on a romantic notion about manual labor, usually spread by people who never had to support themselves by manual labor. Nebraska Senator Ben Sasse is a prominent proponent of this myth. The myth is something along the lines of people are is soft “too soft” and some hard work will just toughen you up. This myth can deflect legitimate concerns about workplace safety into wimpy and politically correct griping.

An even more insidious basis for the myth that native born Americans won’t work in meatpacking is scientific racism. Scientific racism is the belief that certain ethnic groups are better at some tasks than others. When urban liberals state “Immigrants do the jobs that natives won’t do” they probably don’t mean that there is something inherent in the DNA of Latinos and east Africans that allows them to not to get bi-lateral carpal tunnel and epicondylitis from trimming 3000 briskets over an 8 hour shift. But there is an assumption that immigrants are willing to tough it out while native born workers can’t. This isn’t true. Lots of immigrants can’t handle the physical demands of meatpacking working, but some can. The same goes for native born workers.

Another reason for the myth that native born workers won’t work in meatpacking is the subtle bias of those who report on working conditions in the meatpacking industry. Much of what America knows about meatpacking in rural America is reported by urban journalists like Arande or Fast Food Nation author Eric Schlosser. You almost get the impression that when journalists like Arande see an east African restaurant paired with a Hispanic clothing store in rural Nebraska they feel some intense wave of nostalgia for some idealized crime free but non-gentrified urban neighborhood free of hipsters and artisan cheese shops.  The shock when a journalist happens upon a mosque and African restaurant in rural Nebraska overwhelms the larger story about the impact of meatpacking on the labor force in rural America.

Arnade has gone out of way his way to be fair to rural residents. However not all writers share Arnade’s fair-minded attitude towards rural Americans. In December, liberal commentator Markos Moulitsas wrote that people should be glad that coal miners who voted for Donald Trump were going to lose their health insurance. Coal mining is probably as hazardous a job as meatpacking. But to an urban liberal audience, immigrant meat packers deserve sympathy for working in a dangerous job, but Trump-supporting native born coal miners who work in an equally hazardous job deserve contempt.

The ugly sentiments expressed by Moulitsas found a more hideous expression from New York Times columnist Bret Stephens. The toxic Tory “joked” that the U.S. should deport native born working class people, but that nobody would want them. Stephens “ironic” comments draw an eerie parallel with the ironic racists of the alt-right. it’s disturbing that a so-called liberal publication would give this jerk a bi-weekly forum.

The ugliness of Bret Stephens class prejudice follows from well-meaning assumptions that native born Americans will not work in industries like meatpacking. There is a shared assumption that immigrants have particular virtues and native-born Americans have particular vices and defects. These misconceptions fuel resentments and backlash that opportunists can exploit.  A better understanding of the workforce in rural areas will help honest-minded people overcome views that help perpetuate anger that works to undercut rights and benefits of all workers regardless of race or citizenship status.

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

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Will The Supreme Court’s Attack On State Courts Affect Workers’ Compensation?

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One of the biggest and least understood developments of the current session of the Supreme Court session is how the Supreme Court has undercut the power of state courts to decide cases. This development may also impact the traditionally state law centered world of workers’ compensation.

In Bristol Meyer-Squibb v. Superior Court the Supreme Court held that non-California residents could not join a class action against Bristol Meyer-Squibb in California state court. In Tyrell v. BNSF the Supreme Court held that North Dakota residents could not sue the BNSF in Montana state court in an FELA case.

Despite Bristol-Meyer and the BNSF having a substantial number of employees and doing a substantial amount of business in California and Montana respectively, the Supreme Court held that it would violate due process to subject defendants to litigation in those states. State court litigation should be limited to states where a defendant is incorporated, where they are headquartered or where the events in the case took place..

Bristol-Meyer and Tyrell both rely on the Daimler v. Bauman case that was decided in 2014. In her dissent in Daimler, Justice Sonia Sotomayor wrote that the effect of Daimler was “to shift the risk of loss from multinational corporations to the individuals harmed by their actions.” Essentially Sotomayor believes that the rule that a corporation can be sued in any state court where they have substantial contacts has been repealed. Sotomayor was the lone dissenter in both the Tyrell and Bristol Meyers case.

The constitutional basis for limiting state court jurisdiction is the due process clause of the 14th Amendment. The use of the due process clause to weaken the ability of states to regulate corporate conduct has echoes of the so-called Lochner era where state laws that impeded on contracts were overturned unless they were based on general police powers.

So-called forum shopping gets a bad rap from tort reformers. Terms like “judicial hellhole” have coined by pro-corporate legal advocacy groups. But the ability to pick a forum to  bring a legal case is inherent in a federal system like we have in the United States. Lawyers have a duty to bring cases in a forum where they think it is most favorable to their client. Corporate and management interests also engage in forum shopping. In November business interests persuaded a business-friendly federal judge in Texas to block enforcement of the so-called blacklist rule that would have prevented employers who violated workplace safety and fairness laws from receiving federal contracts.

Workers’ compensation laws were enacted during the Lochner era and were held to be constitutional because they were enacted under state police powers under the 10th Amendment. But the mere fact that workers’ compensation laws were enacted under 10th Amendment authority of the states does not mean corporate friendly federal courts can not find a way to strip states of jurisdiction over certain workers’ compensation claims. This is particularly true for workers who may be able to claim workers’ compensation benefits in multiple states.

In Magnolia Petroleum v. Hunt, the Supreme Court ruled that an employee who was injured in Texas but lived in Louisiana could not claim workers’ compensation in his home state of Louisiana because he had already accepted benefits in Texas. The court held that the Hunt could not collect benefits in Texas because of the full faith and credit clause of the U.S. Constitution.

Justice Hugo Black’s dissent in the case that pointed out that the only reason that Hunt received workers compensation benefits in Texas was signing a form in the hospital after the accident. Black also forcibly denounced the idea that Hunt was double- collecting benefits in Texas and Louisiana for two reasons. First, Louisiana offset the benefits that Hunt received in Texas. Secondly, Black stated “the aggregate of the awards from both states, if added together, would be far less than the total loss suffered by respondent. The Texas allowance scarcely amounts to a “recovery” in the sense of giving full compensation for loss, and has been described by a Texas court to be “more in the nature of a pension than a liability for breach of contract, or damages intact.”

Black’s description of the benefits available to injured workers who could claim benefits in two states is as true as it is now as it was 73 years ago when Magnolia came out.

In Magnolia, Black also drew parallels between how the due process and full faith and credit clauses could be used to protect corporate interests.

“For more than half a century the power of the states to regulate their domestic economic affairs has been narrowly restricted by judicial interpretation of the federal Constitution. The chief weapon in the arsenal of restriction, only recently falling into disrepute because of overuse, is the due process clause. The full faith and credit clause, used today to serve the same purposes, is no better suited to control the freedom of the states.”

Three years later Magnolia was distinguished by the McCartin decision. In McCartin the Supreme Court allowed an employee to collect benefits in Wisconsin who had first collected benefits in Illinois to collect benefits in both states because unlike Texas, Illinois had no laws stating accepting workers’ compensation benefits in Illinois ruled out a claimant from receiving benefits in another state.

In 1980, the Supreme Court applied McCartin in Thomas v. Washington Gas and Light to rule that an injured employee could collect benefits in Washington D.C. and Virginia.

But the decision in Thomas was far from the enthusiastic endorsement of multi-jurisdiction workers’ compensation claims voiced by Justice Black in his dissent in Magnolia. Three concurring Justices criticized McCartin but upheld the award of benefits to Thomas based on the legal doctrine of stare decisis. Two justices, including William Rehnquist, dissented ruling that Magnolia should still govern multi-jurisdictional claims. Current Chief Justice John Roberts clerked for Rehnquist and holds a great deal of respect and affection for his former boss.

Considering how eager the majority of the Supreme Court is to limit the jurisdiction of state courts, I would be very concerned if the constitutional of multi-jurisdictional workers compensation claims were reviewed by the Roberts’ court.

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

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Rolling Back The Rules That Have Made OSHA Effective In Protecting Workers

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I am regularly surprised in my job.

I recently met with a client who worked in a psychically demanding industrial job who told me that his employer required a supervisor to accompany the employer to the company infirmary. Many supervisors refused to accompany employees to the nurse, so many employees would forgo going to the infirmary.

My jaw dropped when my client told me this.

Last year, OSHA cited a Pilgrim’s Pride Poultry plant in Florida for citation for failure to provide proper medical treatment for their employees. This was the first time such a sanction had been made. In a post last August, I pointed out that Pilgrim’s Pride was sanctioned for not making proper referrals to orthopedist for overuse injury. In the scenario my client described to me, many injured workers were unable to even get first aid for potential work injuries.

Inability to receive basic medical treatment on the jobsite forces employees to seek medical treatment outside work hours. But employees can risk termination if they seek medical treatment outside the plant without notifying their employer. Inability to obtain basic medical care on the job site makes it less likely that employers will log injuries and more likely they can defend workers’ compensation claims for lack of notice.

A year ago, OSHA would have probably been interested in such a scenario. But the Trump Department of Labor is rolling back many workplace safety rules implemented by the Obama administration. Workers may have to look elsewhere besides OSHA for vigorous enforcement of workplace safety laws.

Employees can report potentially unlawful practices like requiring a supervisor to accompany an employee to a nurse’s station to OSHA on their own. At least in Nebraska, this would allow them to pursue a whistleblower claim. But in many instances employees risk termination even a court finds that their employer engaged in unlawful retaliation.

Employees might also be able to pursue wrongful discharge claims based on violations of public policy. The potential problem with these types of claims is often times courts will find that federal law doesn’t create public policy for the purpose of a state law claim. Courts could also find that laws do not create a clear public policy sufficient to create a claim for wrongful discharge.

I am a firm believer in employees working together to address issues in the workplace. So-called protected concerted activity doesn’t involve litigation and is often effective in resolving workplace issues quickly. But again employees take some risks of retaliation. These retaliation claims are sometimes heard by the independent National Labor Relations Board. While the Department of Labor has signaled it will be less responsive to employee interests, the independent NLRB seems to be a more friendly forum for employee grievances against their employers.

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

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A More Dangerous And Demanding Future For Retail Employees?

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Walmart announced last week that it started a pilot program where store employees will deliver packages from stores on their way home from work. If this practice is adopted company wide and adopted by the retail industry as a whole, it will change the nature of retail employment.

As written about on this blog before, delivery and warehousing jobs tend to have more physical injures than traditional retail clerk jobs. If employee delivery becomes a regular part of retail employment, then retail jobs should become more hazardous. One positive part about Walmart using employees to make deliveries would be the fact that those employees should be covered by workers’ compensation if they are injured while delivering packages. Fed Ex has faced legal challenges for misclassifying their delivery drivers as independent contractors. Uber, who has also faced challenges on how they classify their drivers, also has a package delivery service.

Delivery jobs tend to be more physically demanding than retail clerk jobs and can also subject employees to DOT requirements. If package delivery becomes an expected part of retail employment, retail jobs will have more physical and occupational requirements. This could mean in the future that retail jobs may not be a fallback option for workers from other physically demanding occupations who become unable to do their old jobs because of injuries or health problems.

The rise of online shopping has greatly reduced the number of stores of traditional retailers. This decline in so-called “big box” stores lead to a parallel reduction in retail employment. Jamelle Bouie pointed out in Slate that this collapse in retail employment has harmed women, people of color and urbanites who tend to work in retail. Bouie points out, I think correctly, that retail employees tend to be disrespected in part because of gender and race. Bouie also states the decline in retail employment has received much less attention than declines in employment in other sectors like manufacturing and mining that tend to employ more white males.

In contrast to traditional retail workers, delivery drivers tend to be paid better. UPS delivery drivers seem to enjoy a certain level of prestige, respect and even a mystique within the workforce. (11) Maybe some of that respect will rub-off on retail workers if they become delivery employees.  On the flip slide, competition from largely non-unionized and lower-paid retail workers may cut into pay and benefits that delivery drivers and their unions have fought for over the years.

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

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Portability, The Gig Economy And Workers Compensation

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Changing employment laws to encourage so-called “portable benefits” is an idea that goes hand in hand with finding new ways to classify gig economy workers. These proposals are being pushed in a  growing number of states. These proposals also enjoy support from Democrats and Republicans in Congress. These proposals could also radically alter workers’ compensation in the United States.

The idea of third classification of worker between employee and independent contractor is to give so-called “gig economy” workers some protections and benefits without employers having to bear the full costs of employment – including unemployment, workers’ compensation and health insurance. Sometimes this third class of workers is described as “dependent contractors.

Portable benefits are usually discussed in the context of contractors because traditionally benefits such as unemployment, workers’ compensation and health insurance have been provided by employers. So-called portable benefits, are detached from employers. The Affordable Care Act increased portability of health insurance benefits through the use of exchanges Portability of health insurance was touted as a way to help create new businesses because potential entrepreneurs were not tied to an employer for health insurance.

The idea of portable benefits and a new classification for gig employers is also touted as a way to reduce litigation against companies such as Uber for how they classify employees. But former National Labor Relations Board member Craig Becker pointed out that creating a new class of workers may actually create more litigation when employers try to re-classify employee as dependent contractors. Becker and others pointed out that this is what happened in Italy when Italy created a third class of worker that was neither employee nor independent contractor.

Becker and others point out that the drive to create a new class of workers is being driven by tech companies such as Uber as a way of reducing labor costs. The real risks of creating a new classification of workers is shared even by some who promote the sharing or gig economy. Gene Zaino, founder and CEO of MBO Partners, a firm that provides services to independent workers, stated that any new classification of independent workers should only include workers who earn more than $50 per hour. Under such a scheme lower-paid workers would still retain the benefits and protections of the employment relationship.

Though states are pondering portability and dependent contractor laws, there is a push for federal legislation so that laws can remain uniform across the country. Any federal push for portable benefits for so-called independent workers would clash with state-based workers’ compensation laws. Workers’ compensation is traditionally a state law concern because when workers’ compensation laws were enacted the power of the federal government to implement laws regarding workplace safety were limited. During the New Deal-era, that interpretation of the interstate commerce clause changed to allow broad regulation of the workplace.

Advocates for state-based workers’ compensation laws likely have little constitutional grounds to overturn any federal legislation that would substitute “portable benefits” for so-called “independent workers” for state-based workers’ compensation benefits. Some critics who argue, correctly, that many state-based laws inadequately compensate injured workers could also be open to or even welcome a federal substitute for  insufficient state workers’ compensation laws.

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

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