Category Archives: employment law

The Chinese province of Nebraska?

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Xi JinRicketts?

The equivalent of an economic drone strike took place a few blocks northeast of our Omaha office.

Roy Jones was an hourly customer engagement employee at the Marriott Reservation Center in Omaha. As reported in The Wall Street Journal and Quartz,  he liked a tweet by a Tibetan group congratulating Marriott for listing Tibet as a country.  

As a result of liking a the tweet, the Chinese government ordered Marriott to suspend bookings at 300 hotels in China for a week. Mr. Jones was also terminated. Matt Hanson in the Omaha World-Herald reported, Jones was under traiend and over stressed when he liked the offending tweet. Jones had little idea that liking the tweet would be offensive to the Chinese.

Chinese leader Xi Jinping made news recently becoming the Chinese leader since Mao Zedong to rule for life.  Back in 2016, I wrote a post pointing out Jinping’s increasingly authoritarian tendencies and his crackdown on employee-rights lawyers in China.  I never thought the authoritarian Jinping regime would extend its reach into what writer Matt Stoller  sarcastically described on Twitter as the “Chinese province of Nebraska.”

Nebraska’s junior senator, Ben Sasse, has made a pet issues out of the emerging threat of cyber-attacks from foreign powers. I would wonder what he thinks about a foreign power, China, having the power to fire one of his constituents?

Hanson concluded his article by concluding that Jones’ termination wasn’t right. I agree, but employment at-will allows employers broad legal protections when it comes to firing employees. In essence, employers have Jinping-like powers in the workplace. But when a foreign dictatorship has the power to fire an American worker, legislators and judges should re-think employment at-will or think about creating exceptions to that legal doctrine.

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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Long Lonesome Highway West Of Omaha*: Traveling And Employment Risk In Workers’ Compensation

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Employment risk and travelling legally intertwined for the purposes of workers’ compensation. For a workers’ compensation lawyer in Nebraska, they are also intertwined on a personal level.

Back on Friday January 12th, I drove 40 minutes south to Beatrice, Nebraska for a workers’ compensation trial where the main issue of the case was whether an employee who injured herself going out to roll up her car windows during a rain storm had an injury that related to her employment.

After that trial, I drove about an hour west for a client meeting in Thayer County and returned to Lincoln. I stayed up late the night before and woke up early that morning getting ready for a difficult trial. It was a long drive home.

Four weeks later, on Friday February 9th, I filed my final brief in the Beatrice case from a truck stop in Grand Island after a deposition and client meeting in Grand Island. I probably could have driven back to Lincoln and filed my brief, but I wanted to get my brief filed so I didn’t have to worry about it and potentially severe winter weather on the drive home.

Earlier this week, I negotiated a settlement in another case while traveling from Pierce County in northeast Nebraska back to Lincoln. I finalized the settlement with the opposing attorney while they were travelling.

Fatigue, weather and the temptation of using mobile devices while driving are risks for a workers’ compensation lawyer in Nebraska or anyone who must drive long distances for work in Nebraska or anywhere else. For white collar employees like me, driving is by far the biggest occupational hazard that would be covered under the Nebraska Workers’ Compensation Act.

Nebraska law holds that employees injured while travelling for work are covered by workers’ compensation so long as they are engaged in the employer’s business. This is referred to as the commercial traveler rule. The question becomes what exactly is the employer’s business? This question can arise for all employees, not just travelling employees. In my case involving the employee who hurt herself going outside to roll up her car windows in a rainstorm, the court found that employee’s injury was covered by workers’ compensation because she was taking a break for personal convenience. Injuries that take place during breaks for personal comfort or convenience are generally held to be compensable or covered by workers’ compensation.

In the context of a travelling employee, if I had injured myself last Tuesday afternoon while getting lunch at a Subway in York, that injury probably would have been covered by workers’ compensation.

But not all injuries on a job site or while travelling for work are compensable. If an employee is injured while doing something strictly for a personal reason not connected to work, then that injury is not compensable. For example, an injury while travelling to an extra-marital rendezvous during a business trip would likely not be covered by workers’ compensation.

While injuries incurred during personal comfort breaks such as bathroom or meal breaks tend to be covered, injuries while an employee engages in an act of personal convenience are more controversial. They are what we call in the lawyer trade “fact intensive inquiries.” In layman’s terms, it depends on the circumstances. Is the break paid? What are the break policies? How does the break benefit the employer? How much did the errand or break deviate from employment duties? What are the exact employment duties? Injuries involving breaks for personal convenience present difficult factual and legal questions to which there are no easy one-size-fits-all answers.

*Yes, I am paraphrasing “Turn the Page” by Bob Seger and The Silver Bullet Band. For the record, the original “Turn the Page” is far superior to the Metallica cover.

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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Nebraska Fails To Increase 2018 Mileage Reimbursement Rate

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Mileage reimbursement for injured workers in Nebraska stays flat in 2018 despite increase in IRS rate

Injured workers travelling to medical appointments and vocational rehabilitation programs in Nebraska will not see an increase in reimbursement for mileage even though the Internal Revenue Service reimbursement rate will rise by $.01 per mile to $.545 per mile starting on January 1, 2018.

In a press release, the Nebraska Workers Compensation court stated the mileage re-imbursement would stay steady at $.535 per mile consistent with the reimbursement rate for Nebraska state employees. The failure to increase mileage rates will particularly impact injured workers in rural areas who need to travel to urban areas to seek treatment or get examined by specialists. The week before Christmas I travelled to the Nebraska Sand Hills region to visit a few clients. I visited a client in Ord, Nebraska who has to see a specialist in Kearney, Nebraska. The failure to raise the mileage re-imbursement rate will cost that client $1.41 per trip.

I visited another client in Loup City, Nebraska who is scheduled for an independent medical examination in Omaha in a few weeks. The failure to raise the mileage rate will cost that client $3.22 for the trip.

Nebraska’s refusal to raise the mileage reimbursement rate for state employees to match the IRS rate is consistent with efforts by the Ricketts administration to reduce state employment costs by a hiring freeze for state employees and end cost of living increases for non-unionized state employees.

The Nebraska Workers Compensation Court also announced the maximum benefit rate will increase from $817 per week to $831 per week. Unlike the mileage rate, the maximum benefit rate is set by statute in Nebraska. In Nebraska we take for granted that the maximum benefit rate will generally increase over time. But that isn’t the case in every state. In 2017 a judge in Alabama ruled that their state’s workers compensation system was unconstitutional because it had not increased the maximum benefit in nearly 30 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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Back In The game Or Back To Work Too Soon?

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Senator Dan Quick has introduced employee-friendly legislation

Last weekend’s Big 10 Conference football championship game between Ohio State and Wisconsin contained some off-the-field controversy when former Wisconsin Badger and current Cleveland Browns player, Joe Thomas, criticized the fact that Ohio State starting quarterback J.T. Barrett was playing in the game six days after arthroscopic knee surgery.

While Barrett lead the Buckeyes to victory with 211 passing yards and 60 rushing yards, Thomas argued that college players should have the option of a second opinion when it comes to major surgeries like players do in the NFL. Thomas argued that team doctors are overly influenced by coaches who want players to return to action as soon as possible and that college players are over eager to return to the field.

A similar issue will be debated in Nebraska’s legislature next month. Senator Dan Quick of Grand Island has a bill on the floor that would require an employer to pay for a second opinion if an employee disputes a finding from a doctor paid for by the employer. Quick’s bill was inspired by his experience of being sent back to work prematurely by a doctor chosen by his employer’s workers compensation insurer.

Quick is an electrician by trade and is one of the few blue-collar workers who serves in the Nebraska Legislature. Another blue-collar worker, Lee Carter, was recently elected to the legislature in Virginia. Like Quick, Carter had a bad experience after a work injury. Carter had his hours reduced after his accident and was unable to find a lawyer because of confusion over which state had jurisdiction over his work injury.

Blue collar workers running for office may be a trend as iron worker Randy Bryce is running for Congress against House Speaker Paul Ryan and Wisconsin Firefighter’s union president Mahlon Mitchell is running for Governor of Wisconsin. I am encouraged that people like Dan Quick and Lee Carter have taken their bad experiences after work injuries and have gone into politics to directly address the problems they  faced first hand and make sure other workers will have better experiences if they get hurt on the 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.

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Is The NEW GIG A New Bargain For Workers?

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Lost among the din of Twitter feuds and even more serious reporting on tax reform, is attention to a tax bill about gig economy workers that could impact more than just tax policy.

The New Economy Works to Guarantee Independence and Growth Act (NEW GIG Act) essentially allows firms such as Uber to withhold income taxes for workers without that withholding being construed as evidence of an employee-employer relationship. Boston College of Law Professors Shu Yi Oei and Diane Ring perceptively point out that the NEW GIG Act will help define how gig economy workers are classified for purposes of laws that cover employees like anti-discrimination laws, unemployment insurance, wage and hour laws and possibly workers compensation laws. Their argument is that NEW GIG allows companies like Uber to define their workers as contractors within the tax code and that helps creates a presumption of independent contractor status.

Though NEW GIG creates a safe harbor for gig economy companies that collect income taxes, NEW GIG does not abolish the common law test that distinguishes an employee from an independent contractor. The common law test rests on an employer having control over the method and means of work. But the tax code is a critical piece to classification of workers. True contractors are able to deduct their expenses from their taxes because legally they are running a business. Courts hold that when a driver or any other worker is essentially running their own business, they are an independent contractor. NEW GIG uses the tax code to encourage workers to take deductions for expenses and hence self-classify as contractors rather than employees.

Federal employment laws like the Fair Labor Standards Act depend on the so-called common law test distinguishing between contractors and employees. State wage and hour laws, fair employment laws and workers compensation laws may not always rely on those definitions. In cases where a state doesn’t use a common law test to distinguish between employees and contractors, the question would be whether NEW GIG would pre-empt those state lawsNEW GIG does not appear to have an express preemption clause, so courts could tend to uphold state employment laws that would conflict with NEW GIG. Lack of express pre-emption language in NEW GIG may also mean that courts wouldn’t pre-empt state employment laws that rely on the common law test distinguishing contractors from employees. If courts read NEW GIG as just a way for gig economy companies to collect income tax from their workers without creating an employee-employer relationship, then its impact could be muted on state laws and possibly on federal laws.

NEW GIG is sponsored in the Senate by John Thune (R.-South Dakota). Thune has recently criticized Uber for customer data breaches and sexual harassment allegations within the company. Those concerns have been echoed by Senator Mark Warner (D-Virginia) who is a leading proponent of the gig economy. (11) The fact that supporters of the gig economy appear to be questioning the practices of Uber could show the gig economy companies may not have an easy time in fundamentally altering the relationship between companies and their workers.

But Uber is not the only gig economy company and public statements by our elected officials don’t always match up with their actions. Even if NEW GIG is just a tax bill there is power in the perceptions and presumptions that would be created if NEW GIG were passed. Advocates for employee rights would be well advised to keep a close watch over the NEW GIG bills in the House and Senate.

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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Amazon, Walmart and the “Shameless” Economy

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With holiday shopping in full swing, Gizmodo just ran a long article about how Amazon is using an Uber-like app to hire delivery drivers as independent contractors.

Back in June, I blogged about a Walmart program where Walmart employees were being used to deliver packages. I pointed out in the piece that at least Walmart delivery drivers would be treated as employees in contrast to Fed Ex drivers and now Amazon drivers who have no employment protections like workers compensation or unemployment insurance if they get hurt on the job.

On social media, I’ve pointed out that Walmart actually seems to be better on employee classification than Amazon. That’s a pretty startling admission from me as Walmart has long been a target of criticism for their employment practices from our firm and any other sentient employee rights advocate with a platform.

When I read the Gizmodo article about Amazon, I thought about an episode of Shameless where the ever enterprising Lip underbids illegal aliens on a construction job with a group of rich kids looking to do volunteer work to bolster their college resumes. Up until now, Walmart has been a leader in the low wage economy. But leave it to Amazon to underbid Walmart in the race to the bottom.

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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Uber: A Tale of Two Cities

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While London’s ban of ride-hailing service, Uber, seems poised to continue for the forseeable future, Lincoln, Nebraska may soon lessen formal regulation for Uber drivers.

The Lincoln City Council is scheduled to vote on an ordinance on October 16th that would formally eliminate a requirement that Uber and Lyft drivers pass a physical, background check and test about Lincoln that taxi cab drivers currently have to pass in order to drive a taxi in Lincoln.

According to city officials, this requirement is not currently being enforced. The ordinance has the public support of Mayor Chris Beutler and at-large City Councilwoman Leiron Gaylor-Baird. Supporters of the ordinance cite a decrease in drunken driving from ride hailing as well as a decrease in traffic and increase in downtown parking.

Taxi cab companies state the ordinance lets unqualified drivers on the street and presents unfair competition to traditional taxi cab companies. What hasn’t been eluded to in the debate over ride hailing litigation in Lincoln, but has played more prominently in the London debate, is the fact that ride-hailing companies treat their drivers as contractors which excuses them from paying basic employee benefits like unemployment and workers compensation insurance. This allows services like Uber to undercut traditional taxis on price.

The City of Lincoln doesn’t have a workers’ compensation ordinance. But allowing Uber competitive advantages over taxi cab companies indirectly impacts workers compensation because if Uber takes market share away from traditional taxi cabs fewer drivers will be covered under workers compensation.

Lincoln does a have a human rights ordinance that covers more employees than either state or federal anti-discrimination laws. By allowing Uber a competitive advantage over traditional taxi cab companies, Lincoln is potentially excluding workers from coverage of that ordinance since Uber denies it is an employer. Traditional taxi cab companies are subject to Lincoln’s human rights ordinance.

Many business observers have argued that Uber’s biggest innovation is “regulatory arbitrage.” Regulatory arbitrage is a fancy word for lobbying. Uber hired former Obama advisor David Plouffe. In the United Kingdom, Uber’s chief lobbyist is the godfather to one of the children for former Prime Minister David Cameron. It’s safe to state that a lot of Uber’s supposed innovation stems from old-fashioned lobbying.

Other cities, most prominently Austin, Texas, have attempted to regulate Uber by imposing the same requirements on ride hailing drivers that they do on taxi drivers. Uber was able to successfully lobby the Texas Legislature to pass a state law that preempted municipal regulation of ride-hailing services.

Though the tech sector is regarded by some as an advocate for LGBT rights, Uber was willing to accept an amendment to the Texas preemption legislation that promoted discrimination against transgender individuals.

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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