Category Archives: employment law

Six Questions You Should Answer Before You Become a Whistleblower

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Whistleblowers have helped expose some of the biggest corporate scandals of the 21st century, including Enron and the Bernie Madoff scandals. Whistleblowers usually expose themselves to a real personal risk by opposing wrongdoing. These risks often include getting fired from their job. If you are thinking about blowing the whistle on illegal conduct at work, here are six questions you should ask yourself:

1.         Are you really opposing unlawful or illegal activity? Lawyers who defend companies against whistleblower claims often may paint whistleblowing as mere disagreement about management style or philosophy. As a matter of law, a whistleblower also must have good faith or honest belief that they are opposing illegal conduct. If you are thinking about bringing a whistleblower complaint, it would be a good idea to do a little research. Whistleblowers.gov is a great resource for the various industries that are covered under the Occupational Safety and Health Administration whistleblower statutes. Most experienced employment attorneys are also willing to do some free consultation for prospective whistleblowers as to whether they are opposing illegal conduct.

2.         Does someone in upper management at your company know about your complaints? This can be intimidating, but in my experience, you will have a stronger case if you bring up your concerns to someone higher up in management than your direct supervisor or worksite manager. This puts the company on notice about the unlawful conduct, and it bolsters your credibility as someone who was concerned enough about the potentially illegal conduct that they reported it to someone within the company who could act on it. Likewise, if someone with authority at your company is on notice of the potentially illegal conduct and that person doesn’t take action, that can bolster your possible case. Sometimes firms will have an “ethics” hotline or will refer you to human resources. I don’t think it hurts to report through those channels, but I think you should also report the unlawful conduct to someone who has the actual authority to change the practice that you are challenging.

3.         Can you frame your complaint as a business problem and suggest solutions to the problem of unlawful conduct and be reasonable in how you report the misconduct? I cribbed this idea from a post from the excellent SkloverWorkingWisdom blog written by attorney Alan Sklover. All things being equal in an employment law case, the party who is most reasonable is going to win. This fact tends to disadvantage employees, because it’s hard to keep a level head when you are being mistreated or being asked to participate in unlawful conduct at work. But do your best to be level headed and objective when you bring up your complaints to management. Like the point in the last paragraph, if the employer ignores your practical solution to the potentially unlawful conduct, then you have bolstered your possible case.

4.         Will other employees will join you in your complaints? Whistleblowers tend to get tarred as tattletales. If co-workers are joining you in your complaints, the case becomes more credible. If you make a legitimate complaint as a group, you also gain protection of the National Labor Relations Act for engaging in protected concerted activity, as well as under any whistleblower law that you might be bringing a case under.

5.         How strongly can you support your claims? To win any whistleblower retaliation case, you must have evidence to prove your case. In most cases, this requires written evidence that often takes the form of emails that implicate possible wrongdoers. If a case gets into litigation, then in theory, such documents must be disclosed. That does not always happen in practice. Additionally, having documents will help a lawyer determine if you have a possible claim and how strong your possible claim could be.

Employees may have concerns about revealing confidential documents and/or be concerned that their employer may take legal action against them for revealing company information. Many whistleblower laws protect certain types of information from being deemed confidential. Employers are also somewhat reluctant to act against whistleblowers, because this can invite more retaliation litigation. But potential whistleblowers should be aware of possible legal liability for disclosing company information, so an employee should be very careful about how they choose to share company information. Attorney-client communications, even those communications involving prospective clients are confidential. By consulting with an attorney, a prospective whistleblower can get some guidance as to whether they are risking legal liability by disclosing information.

Evidence can also take the form of witness testimony, which is why it is helpful if you have a group of employees opposing potentially unlawful conduct.

6.         Are you willing to change jobs or relocate? Even if what you think is a valid whistleblower complaint is merely a dispute with a manager over something that it isn’t illegal, the fact for you is that if you are doing something or working in an environment that you don’t like, you are almost setting yourself up to fail. This is probably even more true if you have a valid whistleblower claim. Studies show that it is easier to find a job while you are still employed. Even with anti-discrimination laws, employers have broad discretion to fire employees under the “employment at-will” doctrine. The underappreciated flip side of employment at-will for employees is that they can quit without cause or notice. If you are in a dysfunctional or even hostile work environment, it’s smart to take advantage of the ability to quit freely if you have another job lined up.

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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Gorsuch, Chevron and Workplace Law

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Judge Gorsuch

Judge Gorsuch

Employers and their attorneys are widely hailing President Trump’s nomination of 10th Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court. Part of the reason that management-side lawyers are praising Gorsuch is his position on Chevron deference. Gorsuch’s views on Chevron could affect how workplace laws are interpreted and how they apply to workers.

Chevron deference is a legal rule that a court will give the benefit of the doubt about the interpretation of the law to how the executive agency charged with enforcing that law understands the law. Gorsuch has criticized Chevron on separation of powers basis, stating that Chevron deference gives too much power to the executive branch at the expense of the legislative and judiciary branches. Recently, government agencies have been interpreting employment laws in a way that is more favorable toward employees. Recent rules issued by the Equal Employment Opportunity Commission regarding the Americans with Disabilities Act are a prime example.

Many workers who get hurt on the job are told that they must come back to work with no restrictions. Chevron deference could be a powerful legal tool for workers faced with such policies. The new EEOC regulations on the ADA outlaw 100-percent-healed policies or policies that require plaintiffs to return to work without restrictions. In the EEOC guidance on the issue, the EEOC cites Kaufman v. Peterson Health Care VII, LLC 769 F. 3d 958 (7th Cir. 2014) as an example of policies that they believe to be unlawful under ADAAA. This case represents a subtle but real shift from current 8th Circuit law as stated in Fjellestad v. Pizza Hut of America, 188 F. 3d 949, 951-952 (8th Cir. 1999) where the 8th Circuit joined other federal circuits that held that failure to engage in an interactive process in accommodating a disability was not per se discrimination, and that there was no duty to engage in the interactive process. The EEOC’s interpretations of the new regulations still require that a plaintiff be able to perform the essential functions of the job with or without reasonable accommodation.

But as indicated by Kaufman, courts may be less likely to dismiss cases before trial, or in legal terminology, to grant summary judgment, on the issue of whether a plaintiff could perform the essential functions of the job with or without accommodation if the defendant does not engage in an interactive process or summarily decides that an employee should not be allowed to return without restrictions.

The fact that there is a split between regional appellate courts, a so-called circuit split, over “100 percent healed” policies increases the chances that the U.S. Supreme Court will decide whether 100-percent-healed policies violate the ADA. Another issue where there is a circuit split that the U.S. Supreme Court will decide is the legality of mandatory arbitration clauses in employment agreements.

Many workers unwittingly give up their rights to have employment-law disputes heard in court when they agree to mandatory arbitration clauses as a term of employment. In D.R. Horton Inc., 357 N.L.B. No 184 (2012) the National Labor Relations Board ruled that mandatory arbitration clauses prohibited Fair Labor Standards Act collective action cases because they interfered with protected concerted activity under 29 U.S.C. §157 and 29 U.S.C. § 158. In Lewis v. Epic Systems, 823 F. 3d 1147, 1154 (7th Cir. 2016), the 7th Circuit struck down a mandatory arbitration clause partly based on giving Chevron deference to the NLRB’s decision in D.R. Horton. The 9th Circuit agreed with the 7th Circuit in Morris v. Ernst and Young, LLP, No 13-16599 (Aug. 22, 2016). Unfortunately for plaintiffs, the 8th Circuit disagreed with the D.R. Horton decision in Owen v. Bristol Care, 702 F. 3d 1050 (8th Cir. 2013).

If confirmed, Gorsuch would be unlikely to give much weight to the opinions of the EEOC or NLRB in interpreting employment laws. Chevron deference is an unpopular concept with pro-business conservatives. Recently, the GOP-controlled House of Representatives passed legislation that, if enacted, would abolish Chevron deference.

Conversely, Chevron deference is a popular concept with progressive employee and civil-rights advocates, as it allowed the Obama administration to expand employee protections in the face of a hostile Congress. But with the advent of the Trump administration and his immigration policies, progressives have a newfound appreciation for separation of powers.

Also, employee advocates probably will not like many of the new rules and regulations issued by Trump appointees such as Labor Secretary nominee Larry Puzder. A prospective abolition of Chevron could be helpful to challenging rules made by a Trump administration. An example from the last Republican administration is instructive. In 2007, the U.S. Supreme Court in Long Island Care at Home Ltd. v. Coke, 551 U.S. 158 (2007) gave Chevron deference to Bush administration rules to exclude home health aides from coverage under the FLSA. It was nine years later that the rule was overturned, giving Chevron deference to Obama administration rules regarding home health aides and the FLSA.

Why an Obscure Securities Law Case Could Affect SSDI

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Securities and Exchange CommissionSocial Security Disability Insurance (SSDI) cases are largely decided by administrative law judges (ALJs). A decision questioning the role of ALJs in another area of the law could cause some major complications for SSDI applicants and SSDI beneficiaries.

The 10th U.S. Circuit Court of Appeals recently set aside a conviction for securities fraud by the Securities and Exchange Commission (SEC) because the ALJ who decided the case should have been appointed under the Appointments Clause rather than hired by the SEC. The 10th Circuit’s decision directly conflicts with a recent decision made by the District of Columbia  Circuit Court of Appeals, which means the U.S. Supreme Court could take up the issue.

This matters to SSDI applicants, their attorneys and even present SSDI beneficiaries because the vast majority of administrative law judges, roughly 1,200 of 1,400, have been hired by the Social Security Administration to hear Social Security Disability appeals. Similar to ALJs from the SEC, ALJs who hear SSDI appeals are hired on merit and are federal employees.

If the U.S. Supreme Court followed the recent 10th Circuit decision and applied it to ALJs who heard Social Security Disability appeals, at least 1,200 ALJs would have to be appointed by the president and confirmed by the Senate. This could lead to further delays and uncertainty related to SSDI appeals. If the 10th Circuit decision were applied to SSDI judges, it is uncertain as to whether awards of disability would still be valid if they were made by unconstitutionally chosen ALJs. In 2014, in National Labor Relations Board v. Noel Canning, the Supreme Court held that the NLRB’s decision made by commissioners who were appointed by constitutionally invalid recess appointments was invalid.

The Social Security Administration has recently moved to abolish the treating physician rule in an effort to decrease claim payments. Uncertainty over whether the awards of SSDI benefits are constitutional would add additional hurdles to those needing SSDI benefits. If you are applying for Social Security Disability or thinking about it, contact an experienced attorney. Also, contact your lawmakers to express your concerns about the SSDI system to them.

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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Workplace Safety and the Legacy of Martin Luther King, Jr.

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Rev. Dr. Martin Luther King Jr. speaking. (Photo by Julian Wasser//Time Life Pictures/Getty Images)

Rev. Dr. Martin Luther King Jr. speaking. (Photo by Julian Wasser//Time Life Pictures/Getty Images)

“It was horrible,” said the woman.

One minute she could see a sanitation worker struggling to climb out of the refuse barrel of a city garbage truck. The next minute mechanical forces pulled him back into the cavernous opening. It looked to her as though the man’s raincoat had snagged on the vehicle, foiling his escape attempt. “His body went in first and his legs were hanging out,” said the eyewitness, who had been sitting at her kitchen table in Memphis, Tennessee, when the truck paused in front of her home. Next, she watched the man’s legs vanish as the motion of the truck’s compacting unit swept the worker toward his death. “The big thing just swallowed him,” she reported.

Unbeknownst to Mrs. C. E. Hinson, another man was already trapped inside the vibrating truck body. Before vehicle driver Willie Crain could react, Echol Cole, age 36, and Robert Walker, age 30, would be crushed to death. Nobody ever identified which one came close to escaping.

The horrific deaths of Cole and Walker on Feb. 1, 1968, set off the Memphis sanitation workers’ strike, where 1,300 mostly African-American public employees struck to protest poor working conditions, including the defective garbage truck that crushed Cole and Walker. Martin Luther King Jr. gave his famous “I’ve Been to the Mountaintop” speech in support of the striking sanitation workers in Memphis the night before he was assassinated.

On Monday, Martin Luther King Jr.’s birthday is celebrated as a holiday. But the rightful veneration of Dr. King should not, for the lack of better terms, wrongfully sanitize or whitewash the fact that what he fought for would be opposed by many who invoke his legacy today. The Memphis sanitation strikers are asking for the same thing that striking fast food and service workers are asking for in the Fight for 15 campaign. Most establishment types and so-called moderates in Memphis refused to support the striking sanitation workers. Today’s so-called moderates argue that paying employees a living wage is too radical and counterproductive. History has a way of repeating itself.

Nearly 50 years later, I still represent sanitation workers who are injured from defective equipment. However, bloody crush injuries like the ones that killed Cole and Walker are much less common. Part of the reason for the increase in workplace safety over the last 50 years was the passing of the Occupational Safety and Health Act. Dr. King was willing to risk bodily harm and ultimately ended up being killed supporting workers who were protesting unsafe work conditions. The passage of OSHA is a small but important and overlooked part of Dr. King’s legacy. History is repeating itself again as the business establishment applauds the expected rollback of OSHA enforcement under expected future Labor Secretary Andy Puzder.

Dr. King also deserves credit for his role in passing laws like Title VII that prohibited discrimination against African-Americans, which has allowed an increasing number of African-Americans to join the professional class and otherwise realize their potential as human beings. Dr. King’s legacy can also be seen in the expansion of rights for disabled Americans, and the fact that gays and lesbians are able to get married, and the real possibility that Title VII may end discrimination against lesbian, gay, bisexual and transgender people.

But by some economic measures, African-Americans are worse off now than they were 40 years ago. This fact can likely be attributed to overall increases in economic inequality over the last 40 years. The U.S. Department of Labor pointed out in a recent study that the gutting of state workers’ compensation laws has exacerbated inequality. Lawyers, legislators, academics and pundits have gradually forgotten about the risks faced by workers like Echol Cole and Robert Walker and how civil rights leaders including Martin Luther King Jr. saw the fight for workplace safety as a matter of basic human dignity and integral to the fight for civil rights.

The offices of Rehm, Bennett & Moore and Trucker Lawyers will be closed in observance of the holiday on Monday. We will re-open at 8:30 a.m. Central Time on Tuesday, Jan. 17. We encourage readers to think about Martin Luther King Jr. on the federal holiday and every day and continue to be both motivated and challenged by his words and works.

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 Courts, discrimination, employment law, Government, Harassment, History, Holiday, Martin Luther King Jr. and tagged , , , , , .

A High-Tech Update on a New Black Friday Tradition

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OUR Walmart has been protesting working conditions at Wal-Mart on Black Friday since 2011. This year, OUR Walmart will forego protests and instead promote the WorkIt app, which uses IBM’s Watson technology to inform Wal-Mart employees about their rights at work.

Walmart is warning employees against using the app. If Walmart were to terminate an employee for downloading the app, this would likely be an unfair practice under the National Labor Relations Act, and it would likely be unlawful retaliation under Nebraska law as well.

The positives of WorkIt

WorkIt uses technology to allow workers to push back against management. Traditionally, this has been the role of labor unions. But the application essentially cuts out that middleman. Organized labor has had great difficulty organizing at Wal-Mart, but if the app serves some of the main functions of a union, it is a benefit for Wal-Mart employees.

Nebraska’s junior senator, Ben Sasse, decided that he would moonlight as an Uber driver in Nebraska a few Saturdays ago. In a press release, he touted the benefits of the “disintermediation” of the workforce. Disintermediation is a fancy term for cutting out the middleman. Uber cuts out the middleman by connecting drivers directly with those needing a ride through an app. Of course, Uber thinks that the user of the app can cut out the need for things like fair-employment protections, unemployment insurance and workers’ compensation coverage for their drivers as well. Most employee advocates have concerns about this relationship. If nothing else, the WorkIt app shows that technology is a tool to expand workplace protections even as the use of technology erodes workplace protections.

Possible downsides to WorkIt

Apps and other computer programs are only as good what the programmers input into the programs. Wal-Mart employees probably do know Wal-Mart policy, but other employee-protection laws, especially workers’ compensation laws, vary from state to state. The WorkIt app may not be able to help people with state-specific questions.

Furthermore, Wal-Mart isn’t under any obligation to follow its own policies in a non-union workplace. Failure to follow those policies could be evidence of wrongful conduct, but it isn’t unlawful per se. In short, knowing company policies can be helpful, but management has wide discretion in how it interprets those policies. That’s where having a union steward or representative is helpful in a dispute with management, as the steward will have a better idea of how those policies have been interpreted in the past.

Finally, while an app is helpful, it somewhat undercuts the idea of collective or concerted activity, which forms the basis of unionization. Instead of reaching out to other employees about common concerns, just relying on an app could reinforce the strategy of taking individual grievances to Wal-Mart through what they call their “Open Door Policy.” Apps can reinforce the atomized, overly individualized relationship that people have with technology and their employers.

But in the wake of the recent elections, some veteran union organizers are calling for a radical rethinking of how to organize workers. WorkIt may be part of that new tool kit to organize workers in the 21st century. Apps are already part of workers organizing for rights. In China, workers are using the WeChat app to organize independent unions. Hopefully U.S. workers will start using apps like WorkIt and existing apps to protect themselves 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.

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Department of Labor Weighs In on New Age of Salary Servitude for ‘Executives’

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Most of the U.S. workforce has the right, provided by the Fair Labor Standards Act, to be paid overtime for working more than 40 hours in a week. Before the federal government set rules for overtime, most employees worked longer hours, and millions of Americans worked six or seven days a week, as Chinese factory workers do today. Salaried workers also have the right to be paid a premium for overtime work, unless they fall into an exempt category as a professional, an administrator, or an executive. Exempt employees must be skilled and exercise independent judgment, or be a boss with employees to supervise. However, many companies have worked to get around these overtime rules by classifying employees like cooks, convenience store employees or restaurant workers as “managers,” “supervisors,” or “assistant managers or supervisors,” so that their employer can deny them overtime under this exception. 

In May 2016, the Department of Labor issued its final rule establishing a new minimum salary threshold for the white-collar exemptions (executive, administrative and professional) under the Fair Labor Standards Act. This new threshold of $913 per week ($47,476 annualized) more than doubles the current minimum weekly salary threshold of $455 per week ($23,660 annualized).  While that may seem like a huge increase, the old threshold level is only $2 a week above the poverty level for a family of four. Twenty-one states have filed suit to challenge this rule, citing the rule will force many businesses, including state and local governments, to unfairly and substantially increase their employment costs. 

The old rule allowed companies to put employees on “salary” at a low rate and require them to work sometimes significant overtime. The fact that so many government entities are concerned about this new rule substantially increasing their employment costs underscores the extent to which even government entities have taken advantage of employees in this fashion. Can you imagine earning $25,000/year and having to work 50, 60 or 70 hours a week? Even at 50 hours a week, that equates to an hourly wage of only $8.01!

In the first year, the department estimates that the new rule may affect, in some manner, over 10 million workers who earn between $455/week and the new $913/week threshold.  

The median worker has seen a wage increase of just 5 percent between 1979 and 2012, despite overall productivity growth of 74.5 percent (Mishel and Shierholz, 2013), according to the Economic Policy Institute. One reason Americans’ paychecks are not keeping pace with their productivity is that millions of middle-class and even lower-middle-class workers are working overtime and not getting paid for it. Before this rule change, the federal wage and hour law was out of date. This change purports to correct this modern day servitude that the law – for the last 30 years – has carved out a huge exception, allowing workers to be taken advantage of simply by assigning them a title and paying them a salary.  

 

Sources:

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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Rule Requiring Disclosure of Labor Law Violations by Federal Contractors Temporarily Blocked by Federal Courts

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President Barack Obama signs the "Fair Pay and Safe Workplace" executive order in the Eisenhower Executive Office Building South Court Auditorium, July 31, 2014. The President is joined on stage by Labor Secretary Thomas Perez as well as employers who support fair labor practices, workers who have seen firsthand the effects of workplace violations, and advocates who have worked to improve fair pay and safety standards. (Official White House Photo by Pete Souza)

President Barack Obama signs the “Fair Pay and Safe Workplace” executive order in the Eisenhower Executive Office Building South Court Auditorium, July 31, 2014. The President is joined on stage by Labor Secretary Thomas Perez as well as employers who support fair labor practices, workers who have seen firsthand the effects of workplace violations, and advocates who have worked to improve fair pay and safety standards. (Official White House Photo by Pete Souza)

A federal judge in Texas recently issued a temporary injunction against the Fair Pay and Safe Workplaces Executive Order. The order would have required contractors applying for federal contracts to disclose any violations of most federal and state labor and employment laws within the last three years in order to receive a federal contract over $500,000.

In an opinion criticized by employees’ groups and hailed by employers’ groups, U.S. District Judge Marcia Crone criticized that the Fair Pay and Safe Workplaces Executive Order overstepped executive authority on a number of grounds, including the fact that the forced disclosure violated the First Amendment rights of government contractors. The order amounted to defamation of certain contractors, which violated their Fifth Amendment liberty interests, and the order’s restriction on the use of arbitration agreement in employment contracts of federal contractors violated the Federal Arbitration Act.

Crone also wrote that the executive order violated congressional intent in how labor laws were enforced, because it forced contractors to settle labor and employment law issues in order to remain eligible for government contracts.

But in my mind, abstract concerns about the rights of contractors pale once actual people are considered. I represented a gentleman who was fired from a federal contractor after he complained about not being paid properly. In fact, he was chased off the premises by the owner of the company with a stun gun, and the Nebraska Equal Opportunity Commission found in a public hearing, after hearing evidence from both sides, that the company, Midwest Demolition, had retaliated against my client. Earlier this year, Midwest Demolition paid a settlement through a consent decree to the U.S. Department of Labor for not paying their employees overtime. To me, the Fair Pay and Safe Workplaces Executive Order is perfectly suited to deal with egregious employer misconduct.

Judge Crone did not order an injunction against enforcement of the paycheck transparency parts of the executive order, which would require federal contractors to inform workers if they were independent contractors and to fully and clearly explain deductions.

The Fair Pay and Safe Workplaces Executive Order is the latest example of the use of executive-branch rule-making to expand employee protections. Earlier this year, the Supreme Court upheld a Department of Labor regulation expanding wage and hour protections to home health aides after it withstood a court challenge from employers. The Occupational Safety and Health Administration’s attempt to limit post-work injury drug testing is currently being challenged in federal courts. Executive rule-making is a consequence of partisan gridlock when Democrats control the presidency and Republicans control Congress. Pundits and political forecasters are anticipating more political gridlock after the election, so executive rules that withstand court challenges could be how employee rights expand for the foreseeable future.

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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