Category Archives: ADA

Toxic uniforms create health hazards, legal issues for Delta flight attendants

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It’s news in and of itself when a story about workplace safety gets national attention. So in case you missed it, I want to draw more attention to the story Mike Elk reported in The Guardian about flight attendants at Delta Airlines suffering rashes, hair loss, shortness of breath and other symptoms they believe to caused by chemicals in their new uniforms.

The reporting was excellent and my summaries don’t do it justice – read the story for yourself. I am writing  to unpack the many legal issues this story raises.

Workers’ Compensation – I have never represented a client who suffered a work injury from wearing their uniform, but I have experience in representing employees who have suffered allergic reactions from substances encountered on the job. I wrote a post about the issues that can arise from mass mold exposure that ran in January. Thinking like a lawyer here, there are several issues that would come to mind in prosecuting this kind of case.

The first question would be jurisdiction. Like truck drivers, flight attendants work all over the country, so several states may have jurisdiction over their claim. (Delta flies out of both Lincoln and Omaha airports, so Nebraska may have jurisdiction over some of these claims) A lawyer would have to judge where to bring a claim based on various factors like benefits available to a worker and causation standards in a particular state.  An injured flight attendant may also be able to claim benefits in multiple states.

Third-Party Negligence – As reported in the story, flight attendants from other airlines have reported similar concerns about uniforms in the recent past. In my view the fact there have similar concerns about flight attendant uniforms in the past, means there could be colorable negligence case against the manufacturer of the uniforms – Land’s End.

Workers’ compensation benefits are limited by law, but in exchange for limited benefit employees can get benefits regardless of fault. If another party is responsible for the injury the injured worker can sue that party for damages that more completely compensate for an injury.

But if a third-party is responsible or partly responsible for a work injury and employee is compensated by that party, an employer who pays workers’ compensated has the right to be repaid  from those proceeds. Repayment rights, also called subrogation rights, can vary from state to state. State law can also vary on third-party case procedure and damages available in a negligence case.

Employment law issues

As reported, many flight attendants have been reluctant to report concerns over the uniform because of fear of retaliation. I am not sure that concerns over the uniform would be covered under the OSHA whistleblower laws. But reporting of unsafe conditions could be covered by state whistleblower laws. Many states also protect employees against retaliation for reporting a work injury ro claiming workers’ compensation. Again jurisdiction would be an important concern.

The article mentioned Delta requiring attendants who did not want to wear the uniform to fill out a reasonable accommodation request under the Americans with Disabilities Act. I believe requiring such formality may run afoul of the Americans with Disabilities Act (ADA).

Last year, a federal court in Nebraska ruled a Wal-Mart employee could proceed to trial on an ADA claim because he didn’t want to wear a long butcher coat that got stuck in his wheelchair. The individual in that case needed a wheelchair because of a disability. The court believed the long butcher coat could cause a safety hazard. The court believed there some evidence the employer didn’t accomodate disability because of failure to allow the employee to alter his uniform. The similarity in the two cases is that when a uniform or part of uniform is a problem for an employee, it can be an easy fix for an employee – change the uniform. Many Delta flight attendants are requesting to wear the old, non-toxic, uniform. That would be simple fix, but that simple fix could be complicated by the formal, time consuming and paperwork heavy accomodation processes required by some employers.

I also believe that sex discrimination could be an issue if women are forced to wear toxic uniforms while male employees don’t have the same requirement.

Collective and class action issues

A theme running throughout the story, is that since Delta is a non-union employer many employees are afraid to speak up about the uniform. I find those fears about retaliation in a non-union workplace to be valid. I also think that many of issues relating to employment law and defective manufacturing may have to be addressed in class action claims since they could affect so many employees.

Support Mike Elk and Pay Report

Many law blog posts end with a pitch. My pitch is to support the excellent reporting and writing by Mike Elk at Payday Report. This isn’t the first time I’ve cited his reporting on my blog. His reporting has changd how I think about some workplace issues. Mike covers the kind of stories that need to be covered and understands the importance of civil rights, safety and labor laws in the workplace. He deserves your support.

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.

This entry was posted in ADA, Nebraska, negligence, Workers' Compensation and tagged , , , , , .

Accommodation on the job for amputees draws media attention

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A federal court in Nebraska recently ruled in a case about accommodating a wheelchair bound amputee on the job.

Two recent cases involving Walmart and accommodating workers with amputations have made the news recently.

The EEOC sued Walmart for allegedly failing to hire a Texas woman with an amputated hand as a stocker. Here in Nebraska, a federal district court denied summary judgment in a failure to accommodate claim involving an amputee who used a wheelchair and requested not to wear a long butcher coat because it got stuck in his wheelchair.

The Texas and Nebraska cases both turn on arguments about the failure of Walmart to engage in an interactive process to accommodate a disability. The Nebraska case also emphasized that this interactive process need not be formal which is a point I have made before.

The longer I practice workers’ compensation and employment law, the more I despise bureaucracy. Reading “The Utopia of Rules” by David Graeber in 2015 crystallized my thinking on the topic. In early 2017, I wrote a post about just cutting management out of the accommodation process altogether if possible. I wrote that such conduct would be protected as a protected concerted activity under the National Labor Relations Act. (NLRA)

Well, thanks to Neil Gorsuch’s 5-4 majority opinion in Epic Systems, helping to accommodate the disability of a coworker may not be a protected activity under the NLRA. For now at least, federal courts don’t require that employees have to exhaust administrative remedies within what amounts to a private administrative state in order to accommodate a disability. Courts seem to give more legal power to an individual alleging individualized discrimination rather than employees acting collectively about the terms and conditions of their employment.

In short, employees have some real legal rights on the job so long as they acting as individuals within the frame of anti-discrimination laws. In order to act collectively employees either need to engage in direct action like strikes — which is a whole other topic —  or in the political arena.

 

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.

This entry was posted in ADA, amputees, Nebraska, Walmart and tagged , , , , .

The case against “Ghosting” for employees

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Employers are increasingly complaining of employees “ghosting” or leaving suddenly without notice. Temple Law Professor and author Brishen Rogers correctly pointed out on Twitter that employee ghosting is protected the by the 13th Amendment prohibition of slavery. Other commentators have pointed out that employers have been “ghosting” employees for many years and that some turnabout is to be expected as unemployment declines.

Employee “ghosting” is also the flip side of employment at-will. Employers are free to fire you at any time, but you are free to quit your job at any time without notice.

The concept of giving notice before quitting isn’t rooted in any legal requirement. But giving notice before leaving a job can give employees some legal benefits. Providing written notice can provide more protections to employees if done correctly.

Unemployment

In Nebraska, if you quit your job you have to prove you had good cause for the quit to get full unemployment benefits, whereas if you are fired your employer has to prove you committed misconduct in connection with your employment to deny you full benefits. Often when an employee gives two weeks’ notice, an employer will have them stop working before the two week notice period ends. In this situation an employee, for the purposes of unemployment benefits, has been fired. So unless the employer can prove the employee committed some misconduct, then they will receive full unemployment benefits.

Putting notice in writing can be helpful because it explains why you are leaving. Under Nebraska law, there are several reasons deemed by good cause for leaving. Having one of those reasons in a letter could help you receive unemployment benefits sooner.

I recently had an employee who was asked to submit a resignation letter due to alleged concerns about her job performance. My client was smart enough to write down that she would retract her resignation if performance improved. My client ended up winning her unemployment appeal due in part to that letter as it wasn’t clear that she really intended to resign.

Other employment laws

Written notice can also help in other cases. If an employee resigns due to workplace harassment, written notice of a quit would put an employer on notice of the harassment if it wasn’t done so already. Adding in that the resignation would be retracted if the harassment was addressed would also help.

A written notice that an employee is quitting because of a medical condition could prompt an attempt to accommodate that condition under the Americans with Disabilities Act.  I have seen written notice of quits because of medical conditions be helpful in winning benefits in workers’ compensation cases as well.

Giving notice is also helpful to an employee quits a new job for a new job that falls through. Courtesy can help an employee maintain a relationship with an employer and make it easier for an employee to go back to a job.

 

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.

This entry was posted in ADA, Harassment, Nebraska, Unemployment, Workers Compensation and tagged , , , , , , .