Category Archives: employment law

Can I use the decision in my unemployment appeal in my wrongful termination case?

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Can I use the decision in my unemployment appeal in my wrongful termination case?

Attorney Nate Ring answered this question for his state on his blog, The Nevada Labor Law Blog.

In Nevada, the answer is a firm no by statute.  Nebraska law is a bit more permissive about the use of unemployment decisions in other cases. But in my experience, judges will rarely admit the decisions into evidence or give the decision much weight for the purpose of summary judgment.

I will explain why Nebraska judges usually don’t rely on unemployment decision in other cases. But even if an unemployment decision can’t be used in a wrongful termination case, an unemployment appeal can be useful in investigating a wrongful termination case.

Nebraska judges tend not to give much weight to unemployment decisions in related cases for reasons of procedure and substance. Like Nate Ring wrote, unemployment appeals have rules of evidence that allow in more evidence but allow for far less investigation than in civil court. The differences in evidentiary and procedural rules can lead to an unemployment judge deciding a case about the same termination on a different set of facts.

Secondly, in an unemployment appeal the employer has the burden of proof to show the employee committed misconduct in connection with their employment. In a wrongful termination case, the employee has the burden to show their termination was motivated by  an unlawful reason. In short, it is easier for an employee to win an unemployment appeal. As a result, judges are very reluctant to let an unemployment decision into the records.

But even though an employee generally can’t use an unemployment appeal decision in a wrongful termination case, an unemployment appeal can be helpful in prosecuting a wrongful termination case.

Unemployment appeals are useful in investigating the facts of a termination, For most employees, non-union and private sector employees, it is difficult to obtain an employment file. In a Nebraska unemployment appeal, an employee can subpoena records relevant to their termination.

The employee, or their attorney, also has the opportunity to question employer witnesses who likely would have been involved in the decision to terminate the employee. In Nebraska this questioning is done under oath.

To sum up, an unemployment hearing can be a way for employee to find out additional facts about their termination and get admissions and impeachment evidence in a wrongful termination case..

Sometimes an unemployment appeal can be a chance for an employer to show they can fully justify their termination. If an employer can provide credible documentation of repeated misconduct or performance problems, an employer is likely to be able to defeat an unemployment claim.

This documentation of misconduct or performance problems is often part of so-called progressive discipline. While progressive discipline isn’t required to fire an employee and failure to use progressive discipline generally isn’t evidence of discrimination, progressive discipline is often necessary in an unemployment hearing. If employers don’t follow progressive discipline, they risk having their unemployment taxes increased.

I’ve written previously about the vast powers that employers have to fire employees in the United States. Employers can fire employees at any time for reason. This is known as ‘at-will employment.” The law around unemployment insurance can serve to modify employment at-will by giving a tax penalty to employers who don’t follow progressive discipline in firing employees. So while unemloyment insurnace is thought of a social safety net program, it effectively functions as a civil rights law as it discourages employers from firing employees without some due process.

 

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 employment law, Nebraska, Unemployment and tagged , .

Blockchain: Another tool for management to use against workers?

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Just like staying at a Holiday Inn Express made you smarter in the mid-to-late 2000s, writing a post about “blockchain” will make any blogger sound smarter in the late 2010s.

The latest entry in the blockchain derby, was “Is blockchain the next frontier in preventing sexual harassment?” by Jon Hyman. The post does a good job of explaining blockchain as a technology that creates secure, verified and unchangeable records. Hyman also writes how blockchain could be used for reporting of sexual harassment – and presumably other forms of unlawful discrimination. (The clear explanation of blockchain makes the post worth reading.)

The innovation or “disruption” described by Hyman is that there is an blockchain program that allows employees to bundle reports of harassment made against the same harasser.

So some Silicon Valley genius, or poorly paid coder, developed a program that mimics protected concerted activity. There might be an intellectual property issue here as this concept was actually invented in the 19th century – it’s called a labor union.

Meanwhile outside of the gilded and dreamy world of HR Tech, the rights of employees to from unions and engage in protected concerted activity  are being curtailed.

My problem with the use of blockchain software run by a third-party on behalf of management are numerous. First it would impose hurdles in the discovery process. If similar complaints of harassment or discrimination are stored by a third-party, HR may not know to disclose them in discovery. I suspect this may not be entirely accidental. Harassment and discrimination claims usually require an employer have knowledge of the discrimination and the opportunity to take remedial action. Outsourcing reporting and creating an extra step in reporting discrimination gives employers additional legal protections.

Also, if similar complaints about harassment or discrimination were stored on a blockchain run by a third-party vendor, it might require subpoenaing those records. Besides potential jurisdictional issues over subpoenas, tech companies are famously unwilling to cooperate with legal investigations. Apple refused the request of the FBI to unlock the I-phone of a mass shooter in San Bernadino, California. If tech companies will stonewall the FBI, I am sure they would stonewall a plaintiff’s lawyer in a civil case.

In contrast, a call to a union business agent or Local leader will often yield information about comparators and company practices in a discrimination case. Unions aren’t perfect, but neither is HR or the latest technology. Innovations in information technology can empower employees.  One example is an app created by the United States Department of Labor designed to combat wage theft. But blockchain technology controlled by management is just another tool in maintaining the dominance of capital over labor in the workplace.

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 discrimination, employment law and tagged , .

Do exhaustion of remedies requirements amount to private sovereign immunity for employers?

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Experts in employment law sympathetic to management and workers shrugged off the Supreme Court’s decision last week that made exhaustion of remedies a procedural rather than jurisdictional requirement for job discrimination claims brought under federal law.

But what employment law experts consider normal, would likely raise questions for non-experts who understood arcane employment law concepts. Exhaustion of administrative remedies is one of those arcane concepts and it is an idea that illustrates the over-privileged, in my view, position employers hold in the American legal system in relation to their employees.

Here is an example of the benefit employers get from the requirement to exhaust administrative remedies.

Let’s say you lose your job, so you lose affordable health insurance. Let’s say you need some emergency medical treatment and get stuck with a $10,000 bill you can’t pay.

Your local health care monopoly doesn’t need to get permission to sue you to collect their medical bill. They can just sue you.

But let’s say, you want to sue your former employer firing you because of your age, sex, religion, etc. Under federal law and many state laws you need to first file a charge with a civil rights agency and get their permission to sue your employer. (Nebraska actually doesn’t have those requirements. There are some exceptions under federal law as well.) In legal parlance, this is called exhaustion of administrative remedies.

If you sue your employer without exhausting administrative remedies, your employer can have your case dismissed even if you would win your case on the merits.  The recent Supreme Court case just holds that employers must bring that up in the beginning of the lawsuit otherwise they lose that defense.

But if the local hospital sues you for an emergency room bill you can’t pay your bill, you can’t argue that they failed to exhaust administrative remedies because they didn’t get permission from a third party to sue you.

Does anyone else get this sweetheart deal in litigation? Yes, the state, local and federal government. This is called sovereign immunity. Sovereign immunity is a doctrine from English common law that holds the king can do no wrong.

But wait, didn’t Americans fight a war in the 18th century to get rid of monarchs? Isnt the concept of sovereign immunity literally anti-American? One early Supreme Court decision would agree. But soon afterward American officials decided it was good to be king and enshrined this foreign concept into American law.

I think of exhaustion of remedies as a kind of private sovereign immunity for employers. In comparison to the rest of the world, American employers are Louis XIV-style absolute monarchs. The international Organization for Economic Cooperation and Development, OECD, has an index comparing the ease of firing employees in developed countries. Per the OECD, the United States has the least amount of legal protections for employees in the world and is the easiest country in the world for employers to fire employees. A requirement to ask for permission to pursue a wrongful termination case is just another way to protect employers.

I concede that civil rights agencies can be useful and serve a greater purpose than just deciding discrimination cases. But civil rights agencies can lose effectiveness if they are underfunded. In general, administrative agencies are also vulnerable to influence by the industries they regulate — so-called regulatory capture. The option for individuals and groups to litigate directly and effectively against their employers is a necessity for workplace rights. Requiring employees to exhaust administrative remedies makes it harder for them to do so.

 

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 employment law, Nebraska and tagged , .

The good, bad and so-so of workplace law in this year’s session of the Unicameral

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State law impacts the workplace as much if not more than federal law. Nebraska workers gained some protections in the recently adjourned legislative session. Equally important, Nebraska workers didn’t lose any rights or protections in the recently adjourned session.

However, most legislation that would have benefited employees stalled. Nebraska’s low threshold for filibusters and traditional deference to committees makes it difficult to pass legislation without broad support. Most of the proposed legislation that would have affected the workplace lacked that broad support in the legislature.

Nebraska will likely retain its business-friendly litigation climate and middle of the pack ranking in comparative costs of our workers compensation systems (Overall costs of workers’ compensation are declining)

So here is the good and so-so of enacted legislation effecting workplace laws in Nebraska. I will also touch on what didn’t pass and talk about some interim studies that might affect legislation down the road.

The Good

LB 217 introduced by Lincoln Senator Patty Pansing Brooks, would make it illegal for an employer to retaliate against employees for discussing salaries. A few years ago, I would have thought the bill would be unnecessary because the National Lanor Relations Act (NLRA) broadly protected concerted activity in the workplace. But in 2018 the Supreme Court handed down the Epic decision which narrowed the definition of concerted activity under the NLRA. Workers in Nebraska will get back some of those pre-Epic protections.

LB 418 — This law, introduced by Omaha Senator Machaela Cavanaugh would prohibit debt collection of medical bills related to a work injury during the pendency of a workers compensation claim. Nebraska has drawn national media attention for how our laws favor aggressive debt collection. This law protects injured workers.

The law requires injured workers and or their attorneys put in a fair amount of work to comply with the new rule. Employees are required to file a petition to invoke protection of the law, so I would be interested to see if the number of petitions filed in the workers compensation court increases.

The collections bill was also paired with a bill that made it easier for non-resident aliens to receive agreed upon settlement proceeds.

On a side note, Cavanaugh has asked for an interim study by the Business and Labor Committee to study the effectiveness of Nebraska’s anti-discrimination laws

The Bad

The bad news of this legislative session for workers’ in Nebraska is that most legislation that could have helped workers did not get enacted into law. Here are some highlights (or lowlights):

LGBT rights — Legislation to include sexual orientation and gender identity within the Nebraska Fair Employment Practices Act fell well short of the necessary votes to overcome a filibuster.

Omaha’s municipal human rights ordinance prohibits discrimination on gender identity and sexual orientation grounds. Lincoln city council member Jane Raybould hinted at a recent town hall type meeting that Lincoln’s “fairness ordinance” that would include sexual orientation and gender identity within Lincoln’s human rights ordinance might be a ballot question in 2020.

The LGBT community may have some protections from discrimination on the job under a “sex plus”  theory of discrimination which outlaws sex stereotyping.

Employee classification — LB 577 ntroduced by Omaha Senator Tony Vargas would have expanded the power of the Nebraska Department of Labor to shut down worksite suspected of misclasfiying employees as independent contractors. The state loses out on tax revenue through misclassification, while workers miss out on workplace protections like workers compensation and unemployment through being misclassified.

Senator Vargas has also proposed an interim study about workers classification that will bear close scrutiny as it will certainly discuss how to classify gig economy workers and discuss so-called portable benefit laws in Nebraska 

Workers compensation — The legislature shelved legislation that would have clarified when temporary disability ends and permanent disability begins. I’ve blogged extensively about the gap or squeeze that can arise when an injured worker isn’t receiving any types of benefits but can’t work or aren’t allowed to return to work.

The legislature also shelved legislation that would have provided death benefits in workers compensation cases, to workers without dependents.  increased funeral benefits and would have limited expenses charged for medical reports. Likewise the legislature also didn’t pass legislation that would have made it easier for firefighters and other first responders to collect workers’ compensation benefits.

Wage and hour and unemployment — Legislation that would have provided paid leave and prohibited retaliation under Nebraska’s Wage Payment and Collection Act didn’t pass. Legislation limiting mandatory overtime for overburdened corrections workers also did mot pass. Legislation that would have expressly included quitting to take care of a family member as a good cause for a quit. was rejected  Lawmakers also rejected a propsal to increase the minimum wage for tipped employees and to index the state minimum wage for inflation.

The so-so

LB 428 exempted highway constriuction employees on seasonal layoff from job search requirements as a condition of receiving unemployment compensation. I pointed out that while business as a whole likes tough work search requirements as a condition of receiving unemployment, construction employers who have seasonal layoffs don’t like them as it gives employees incnetive to switch jobs.

I believe this was somewhat of a missed opportunity. Like other states with weak rural internet connections, Nebraska’s internet-based system to log job search information with the state is difficult to navigate for rural employees. The legislature needs to fix the mechanism that eligibile workers use to receive their unemployment benefits.

 

 

 

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 employment law, Nebraska, Unemployment, Wage and Hour, Workers' Compensation and tagged , , , .

Upon further review: 2nd thoughts on the AMA 2nd

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Back in October, I wrote a critical post about the American Medical Association Guide to Causation of Injuries, 2nd edition. (AMA 2nd for short) But as I revised that post to submit as a more formal article, I realized some of my criticisms of the AMA 2nd were misplaced.

I still believe the AMA 2nd will be used by the defense bar to informally heighten causation standards. Other bloggers have made similar observations about the use of the AMA 2nd.

I still believe the AMA 2nd will be used in lobbying efforts by the insurance industry.

But after reviewing the AMA 2nd in more detail, I think the danger of the AMA 2nd is in the misuse rather than the use of the AMA Guides.

I came to my conclusion after reviewing materials written about the AMA 2nd by J. Mark Melhorn, MD who is one of the primary authors of the AMA 2nd.

The AMA 2nd gives doctors guidance on how to determine causation for a work injury. How the AMA 2nd differs from a traditional differential diagnosis is that the Guides ask doctors to consider statistical studies concerning causation – or epidemiology – as to whether a condition is work-related. I think it is important to note that the AMA 2nd still requires a doctor to consider work duties and other factors specific to the injured worker in determining whether an injury is work-related or not. The authors of the AMA 2nd is clear about the limits of epidemiology. The authors of the AMA Causation Guides are also clear that medical causation and legal causation are different concepts.

Because of how the AMA Guides to Permanent Impairment, 6th edition (AMA 6th) for short, have hurt injured workers, I like most plaintiff’s lawyers have a visceral reaction to anything document that includes “AMA Guide” in the title. But if I am faced with a medical report or doctor stating that my client’s work duties could not have caused his or her injuries citing to the AMA 2nd, the AMA 2nd is likely being misinterpreted.

The term “evidence-based medicine” is another trigger for plaintiff’s attorneys. Evidence-based medicine is synonymous with the use of statistical research. While the defense bar seems to have marshalled the mystique of math to their advantage, a lot of time the numbers can work for employees. Plaintiffs can cite to favorable studies linking repetitive or overuse to musulo-skeletal conditions.

Epidemiology can also be helpful to workers in other ways. In cases litigated under the ADA employers will justify discrimination based on disability under the theory that a disability or medical condition can pose a direct threat to the safety or health of others. Epidemiology can help an employee prove their medical condition poses little or no risk to their safety or the safety of others. In my experience, this is particularly true if this research is shared with specialists who have treated the individual in the past.

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 employment law, Nebraska, Workers Compensation and tagged , , .

Something old, something new: The 737 Max and the future of workplace safety

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The aftermath of the Ethiopian Air 737 Max crash that killed 157 people

Even as workplace injuries decline, new threats to workplace safety are emerging. The recent crash of an Ethiopian Air 737 Max highlighted on emerging safety risk.

Safety experts attributed the crash to the 737 Max to using modern software to control machinery that was designed as long as 50 years ago. Experts believe that so-called control software works much better when it is designed together with the machinery it is meant to control.

But purchasing new machinery is expensive for business. (Or it cuts into returns for wealthy investors.) Control software is seen as a cost-saving hack.

In the case of the Ethiopian Air crash 157 crew members and passengers lost their lives. Thankfully not all accidents from using 2019 software to control 1969 machinery will be as fatal as the Ethiopian Air crash. But nonetheless accidents from industrial machinery can be gruesome and disabling even if they don’t make international news.

Obviously injuries caused by this slapdash industrial technology would be covered under workers’ compensation laws. But other laws would certainly come into play as well.

Workers who report problems with unsafe technology can bring whistleblower claims. Nebraska has broad protections for employees who report unsafe working conditions.  A complaint about an unsafe working condition can be a report of a work injury in many circumstances. Employees reporting concerns over the design of technology may also have protections under federal law. The United States Senate has opened up an investigation of the 737 Max based on issues raised by a whistleblower. Complaints about machine design could be covered under the various whislteblower laws administered by the Occupational Safety and Health Administration. Employees bring a claim under the act have an easier evidentiary standard to meet than in other forms of retaliation cases.

Employees injured on the job by defective machinery can also bring a negligence case against the manufacturer of the equipment. This so-called third party case could be worth substantially more than a workers compensation claim. But in a case involving modern software controlling old machinery, there could be a dispute over who was at fault. Producers of older technology may also be able to defend negligence claims based on a statute of repose defense which can limit claims for injuries that have yet to happen.

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 employment law, Nebraska, third party, Whistleblower, Workers Compensation and tagged , .

Four rules of thumb about disability accommodation and public employees

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Public employees protesting in Wisconsin in 2011

A few weeks ago Brody posted about the story of a paramedic who ultimately did receive workers’ compensation benefits for a solely mental injury. I agree with Brody that it’s great that first responders can receive workers’ compensation benefits for mental distress on the job not related to a physical injury.

When I read Brody’s post, it reminded me of few informal rules or principles I’ve learned from helping injured workers with their employment law issues for the last 14 years.

Government employers can be difficult. I have a few theories why. First of all, they can invoke sovereign immunity as a defense to any potential unlawful acts. Secondly most of them are self-insured which means any claim made by an employee comes out of tax funds rather than from an insurance policy. Finally since, government employees are entitled to some procedural due process before a termination, government employers go out of their way to build a case for termination. This case building by management can take a terrible mental toll on employees who are being targeted for termination.

Unions are good: Most union contracts require that an employer just cause for termination. That’s usually true for public sector employees as well. But union representation usually means that an employee can receive a substantively fair process when facing difficulties at work. Union officials often know about past practices and can effectively deal with bad behavior by an employer short of attorney involvement. Union contracts often include arbitration rights to dispute a termination, but those rights are often meaningless without an attorney. Unions often foot the bill for an attorney to represent an employee in arbitration.

Disability accommodation is often a bureaucratic nightmare: Under the ADA, employee and employer and supposed to meet in an informal, interactive process to determine how to accommodate disability. What often times happens is that management decides to second guess doctors’ restrictions or ask for endless clarifications. The process becomes adversarial and driven by paperwork.

Mental disabilities aren’t treated the same as physical disabilities: Mental disabilities can present somewhat of a challenge as they are more difficult to measure than physical disabilities. It’s difficult to manage what can’t be measured, but accommodations for a mental injury can be as simple as accommodations for a physical injury if an employee and employer sit down in good faith.

I also believe that employees who suffer from mood disorders are often considered risks for violence if they are having difficulties in the workplace. Studies show the mentally ill are no more likely to be violent than those without a mental health diagnosis. A mentally ill employee who is struggling with job tasks or getting along with co-workers may be not be a qualified employee with disability, however that does not give employers carte blanche to deem an employee with a mental illness to be a threat for workplace violence.

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 employment law, Nebraska, Workers Compensation and tagged , , .

Settling a workers’ compensation and wrongful termination case at the same time

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Many employers want to settle all employment-related claims when they settle a workers’ compensation case

Clients often ask me, “If I settle my workers’ compensation case, can I still sue my employer for wrongful termination?” My answer is almost always yes. But for one unfortunate employee in Louisiana, it appears settling their workers’ compensation case may have doomed their wrongful termination case.

A federal district court in Louisiana held that a worker who settled their workers’ compensation case with a release that released all claims arising from their work injury was deemed to have settled their wrongful termination case under various civil rights laws.

The Louisiana decision raised the ire of some employee-side attorneys. Workers’ compensation laws and civil rights laws provide different remedies for different harms. A Minnesota court recently used this fundamental tenet of law to hold that a disability discrimination claim under their state’s civil rights laws was not barred by the exclusive remedy provision of their state’s workers’ compensation act.

But as a practical matter, some employers like to settle all claims arising out of the employment relationship when they settle a workers’ compensation case. In these cases there is usually consideration, or seperate amounts, to settle the workers’ compensation claim and the employment law claim. Sometimes this can be advantageous for a client. I am not sure of how the release was structured in the Louisiana case, but here is how I structure so-called global releases. In short, you need two releases: one for the workers’ compensation claim and one for the wrongful termination case.

Settling the workers’ compensation case

I wrote earlier about the so-called exclusive remedy of workers’ compensation. In Nebraska, that exclusive remedy also means the workers’ compensation court has limited jurisdiction. Nebraska courts have stated repeatedly that the Nebraska Workers’ Compensation Court can not adjudicate employment law cases because they are a court of limited jurisdiction. Neb. Rev. Stat. §48-139 gives the court jurisdiction over workers’ compensation settlements. 48-139 also dictates the language of workers’ compensation settlements, states when settlements must be approved by the court and mandates the filing of settlement papers with the court. In short, if the Nebraska Workers’ Compensation Court does not have jurisdiction to hear a wrongful termination or discrimination case, any settlements in that court should not effect any wrongful termination case or discrimination case.

Settling the wrongful termination or discrimination case

A settlement agreement in a wrongful termination case is a different document. Usually there is no requirement that it be filed or approved by a court. These agreements are often synonymous with severance agreements and oftentimes included language required by the Older Workers’ Benefit Protection Act if the employee is over 40 years old.

Settlement agreements in employment cases usually also talk mention tax liability. Tax liability is usually not mentioned in a workers’ compensation settlement as workers’ compensation benefits are almost never taxed. But settlement proceeds in a wrongful termination or discrimination case are usually taxable and those agreements should include some discussion of tax liability.

Sometimes employers will want a resignation as a condition of paying a settlement to an injured employee. If the employee is still working, that provision can be a deal breaker. But for an employee who has been terminated the extra money for a wrongful termination claim can be beneficial. Settling all claims at once may also help an employee minimize taxes by apportioning the majority of the value of the severance or employmennt law settlement into the non-taxable workers’ compensation settlement.

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 employment law, Nebraska, Workers Compensation and tagged , , , , , .