Category Archives: Legislation

Workplace Safety Rules Could Be Reversed via Congressional Review Act

Posted on by

United-States-Capitol-Building-in-Washington-DC_1In 2001, President George W. Bush, a Republican, overturned an Occupational Safety and Health Administration ergonomics rule designed to prevent repetitive stress injuries that was implemented by President Bill Clinton’s Labor Department, as he was Bush’s Democratic predecessor.

Around 16 years later, history seems poised to repeat itself.

A slew of workplace safety regulations regarding beryllium exposure, reporting of injuries, mine safety, and chemical storage implemented by President Barack Obama’s Department of Labor seemed poised for reversal by President Donald Trump’s administration that is eager to rollback Obama-era regulations through the Congressional Review Act.

The Congressional Review Act provides Congress a way to disapprove any regulation within 60 days of it being deemed final. But as pointed out in an explainer piece from the right-wing Heritage Foundation, Congress has 60 legislative days to disapprove a regulation. Sixty legislative days could be six to seven months in real time because of frequent congressional recesses. The act also restarts the 60-day clock for final rules that are implemented within the last 60 days of the previous legislative session. Heritage estimates that rules finalized back to June 3, 2016, could be subject to review.

Supporters of Obama-era workplace safety rules cannot rely on Senate Democrats to filibuster resolutions under the Congressional Review Act because the legislation does not allow for filibuster and has streamlined procedures for allowing legislation to be pulled out of committee.

Fortunately or unfortunately, depending on your perspective, the Congressional Review Act doesn’t allow rules to be bundled together. Congress must consider killing each regulation with a single piece of legislation. This feature of the Congressional Review Act may explain why the Clinton ergonomics rule was the only rule actually killed by Congress under the Congressional Rule Act. Finally, the Congressional Review Act prohibits an agency from proposing a substantially similar rule, which could explain why the Obama administration never tried to revive the Clinton-era ergonomics rule.

Labor reporter Mike Elk, editor of Payday Report, is one of the few reporters or writers drawing attention to the fact that Obama-era workplace-safety rules are seriously vulnerable to reversal in the Trump administration. Elk’s reporting details how the chemical industry weakened rules on chemical storage after the West, Texas, chemical explosion and how the Obama administration allowed final approval of the rule to be pushed back to where it would be vulnerable to reversal under the Congressional Review Act. In some fairness, delay by OSHA could partially be explained by budget cuts to the agency by congressional Republicans.

I would encourage our readers to monitor this firm’s social-media feeds and my personal Twitter account, @JonRehmEsq to keep track of Congressional Review Act legislation regarding workplace safety. I would urge readers to contact their members of Congress and express their opposition to any proposed rollbacks of workplace-safety rules.

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 Government, Legislation, Legislative Changes, Workplace Injury, Workplace Safety and tagged , .

Recalling the Forgotten Provision of the ‘Grand Bargain’

Posted on by

grand-bargainThe Oklahoma and Florida supreme courts both overturned anti-worker changes to their state workers’ compensation laws based in whole or in part on their state constitutions. Workers’ compensation laws, for the most part, are state laws. This post seeks to explain why workers’ compensation laws are state laws and what that could mean for workers’ compensation laws in the future.

The vast majority of workers’ compensation attorneys and industry observers know the term “Grand Bargain.” In the “Grand Bargain,” employees gave up the right to sue their employers in tort for work injuries in exchange for defined benefits regardless of fault.

Workers’ compensation laws emerged roughly a century ago. However, Congress did not have the power to enact the “Grand Bargain” because of how the U.S. Supreme Court interpreted the Commerce Clause. In 1895, the court held in United States v. E.C. Knight that manufacturing was not commerce. In 1918, the court overturned a law prohibiting child labor on similar grounds and additionally held that the effects of child labor did not have enough of an impact on interstate commerce to justify regulation.

The Supreme Court did uphold the constitutionality of workers’ compensation laws in the case of New York Central Railroad v. White. However, the court upheld workers’ compensation laws based on a state’s so-called “police powers” under the 10th Amendment.

During the New Deal era in the 1930s, the Supreme Court’s interpretation of the interstate commerce clause changed so that workers’ compensation laws could have been enacted by the federal government. But by then, most states had workers’ compensation laws, so a general federal workers’ compensation law was unnecessary.

‘Federalization’ in the Post-New Deal Era

In the 1970s, Congress passed laws regarding occupational safety (Occupational Safety and Health Act) and employee benefits (Employee Retirement Income Security Act) under its authority granted by the interstate commerce clause. But neither OSHA nor ERISA were intended to interfere with state workers’ compensation laws.

The 1970s also saw an ultimately failed effort to impose federal minimum standards on state workers’ compensation. It was in this era that the term “federalization” and the concerns about the impact of federal laws on state workers’ compensation systems emerged.

Federalization re-emerged as an issue in the 2000s when concerns arose that the costs of workers’ compensation injuries were being shifted onto Medicare, and the federal government tried to fashion remedies to shift the cost back onto the workers’ compensation system. The effect of the Affordable Care Act on workers’ compensation was another federal issue that was hotly debated in workers’ compensation circles.

Finally in President Obama’s second term, OSHA issued many rules about medical care and drug testing  that could have affected workers’ compensation laws. Democratic presidential candidate Bernie Sanders and other elected leaders also wrote a letter to the Secretary of Labor pointing out the failure of state-based workers’ compensation systems.

Conventional wisdom is that the election of Donald Trump paired with a Republican Congress will end the Obama era efforts at federalization of the workers’ compensation system. There is probably a fair amount of truth to this idea, but the Trump era may not spell the end of federalization of workers’ compensation.

In the 2010s “sharing economy,” companies such as Uber and Lyft emerged. The business model of these companies is premised on workers being independent contractors. However, this has created litigation and uncertainty for these companies. In 2015, the Democratic-aligned Brookings Institute hosted a discussion about the “reforming” labor laws for companies like Uber. Though workers’ compensation laws are traditionally state-based laws, there is no constitutional prohibition on designing workers’ compensation systems at a federal level. Unfortunately, it seems as some Democrats could find common ground with Donald Trump and House Speaker Ryan to amend ERISA and the Fair Labor Standards Act to exempt Uber drivers and other sharing economy workers from laws such as workers’ compensation.

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

This entry was posted in Legislation, OSHA, United States Supreme Court, Workers' Comp Basics, Workers' Compensation, Workers' Compensation Reform and tagged , , , , , .

Why Due Process Matters in Workers’ Compensation

Posted on by

Two recent decisions from the state supreme courts in Oklahoma and Florida point out that how an injured worker gets workers’ compensation benefits is as important as how much an employee can receive in benefits for a work injury. In the parlance of constitutional law, the how a worker receives benefits is a termed “due process.”

Oklahoma – In Vasquez v. Dillard’s, the Oklahoma Supreme Court found the so-called “Oklahoma option” violated the equal protection clause of the state’s constitution. The Oklahoma option allowed employers to create their own workers’ compensation benefit plans under the Oklahoma Employee Injury Benefit Act (OEIBA) so long as they offered the same benefits as under the state workers’ compensation program. The problem that the Oklahoma Supreme Court had with “Oklahoma option” was that employers were allowed to design plans with procedures that made it more difficult for injured workers to collect benefits than if they were in the state system. In essence, the Oklahoma State Legislature had created separate but unequal workers’ compensation systems for employees injured on the job in that state, which was a violation of the equal-protection clause of the state constitution. But the deeper reason why the Oklahoma option was overturned was that it denied due process to workers who were covered under the OEIBA.

Florida – In Castellanos v. Next Door Company, the Florida Supreme Court struck down attorney fee limits in workers’ compensation cases on due process grounds under the U.S. and Florida constitutions. The Florida court found that fee caps deterred employees from bringing claims because they would be unable to find attorneys. The court also found that fee caps encouraged employers to wrongfully deny claims because workers would be unable to find lawyers to challenge denied claims. Though Castellanos wasn’t an equal protection case like Vasquez, the Florida court pointed out that employers faced no limits on how much they paid their attorneys. Fee caps for employees only created a situation where employees and employers had unequal protections under Florida’s workers’ compensation law.

Vasquez and Castellanos challenged and overturned state laws. But there are other ways for employees to challenge unfair denials of workers’ compensation benefits besides overturning state laws. In the Brown v. Cassens Transportation cases, a group of injured workers in Michigan used a civil RICO statute (anti-racketeering law) to challenge how their employer, the employer’s claims administrator, and a defense medical examiner worked together to undermine their workers’ compensation claims. In Brown, the U.S. 6th Circuit Court of Appeals recognized that since employees gave up their right to a tort suit under Michigan law to receive certain workers’ compensation benefits, injured workers had a constitutionally protected property interest in both the receipt of workers’ compensation benefits and their claims for workers’ compensation benefits and that employer had conspired unlawfully to deny those benefits.

The court in Brown also recognized that workers’ compensation was the exclusive remedy for workplace injuries in Michigan, which is another reason why workers’ compensation benefits were constitutionally protected. The state supreme courts in Florida and Oklahoma also cited the exclusive remedy provisions of their state workers’ compensation acts to support their findings that state laws violated due process and equal protection clauses of the state and federal constitution.

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 Government, Legislation, Workers' Compensation and tagged , , , , , , , .

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

Posted on by

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.

This entry was posted in employment law, Government, Legislation and tagged , , , .

Is the Rule of Law Under Attack?

Posted on by
Chinese Rights Lawyers Wang Yu (top) and Bao Longjun (bottom)

Chinese Rights Lawyers Wang Yu (top) and Bao Longjun (bottom)

Our colleague in North Carolina recently wrote a blog post about a terrorist attack on lawyers in Pakistan that killed 60 lawyers. It was an attack on the rule of law. A less bloody, but no less brutal, campaign against the rule of law is taking place in China under the increasingly authoritarian rule of Chinese leader Xi Jinping.

Jinping has targeted so-called “rights lawyers,” or lawyers who, like United States’ plaintiffs’ lawyers, represent individuals against major institutions such as corporations and the government. In rhetoric echoing attacks on U.S. trial lawyers, Chinese rights lawyers have been described as “abusing courts to create personal gain and ‘social chaos’.”

Chinese rights lawyers make up a small part of the 270,000 lawyers in China, but in China, there also so-called “barefoot lawyers” who aren’t lawyers at all but are usually self-taught workers and peasants who have learned the law. Barefoot lawyers often advocate for employees in industrial work injury and wage-dispute cases. These barefoot lawyers have frequently been victims of these abuses as well. China’s industrial workforce is similar to the U.S. workforce in the respect that many workers are vulnerable to exploitation because of their legal status. In the United States, undocumented immigrants are vulnerable on the job. In China, residents of rural provinces who move to industrial urban provinces have a lesser legal status in those provinces because of the hukou system. Barefoot lawyers often come from the same rural background as their clients. Like the better educated and credentialed “rights lawyers,” barefoot lawyers are also subject to harassment and repression from the state.

Though U.S. lawyers are generally free from official harassment, some corporate litigants have resorted to totalitarian tactics against plaintiffs’ attorneys. U.S. District Judge Jed Rakoff smacked down Uber for hiring a former CIA agent to investigate an attorney prosecuting a class action suit against the ride-hailing company. Investigation tactics included using fake reporters to try to probe the plaintiff’s attorney for personal information.

So while the rule of law is much more secure in the United States than it is in many other countries, it is still threatened by overheated rhetoric and underhanded tactics.

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, Government, justice, Legislation and tagged , , , , .

9-11: 15 Years Remembered

Posted on by

What have we learned, and what is the progress we have made toward helping those who help others?

As we remember and celebrate that fateful day, we should continue to celebrate and protect those who risk their lives to help others but who continue to live with the mental and emotional effects when faced with such tragic events encountered in responding to the call to serve.

In Nebraska, we have recognized that with tragic events come the effects to some who just can’t mentally and emotionally get past those events. We have garnered some protections for those first responders whose job it is to serve when emergency matters require it.

First responders have a specific definition as set forth in Nebraska Revised Statute 48-101.01, but essentially if a person serves as an officer, fireman or medical emergency personnel who is called to an emergency response situation, then that person has some workers’ compensation protections.

Personal injury now “includes mental injuries and mental illness unaccompanied by physical injury for an employee who is a first responder” if that person suffers from PTSD, depression, anxiety, mood disorder, panic attacks, reactionary diversion, neurotic disorder, etc.

One must establish “that the employee’s employment conditions causing the mental injury or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment” in which they serve.  What is usual is constantly being debated and disputed, but an event causing significant bodily injury or death is not usual in the eyes of the courts.

What is not covered or considered compensable are “mental injuries and mental illness arising out of and in the course of employment unaccompanied by physical injury … if they result from any event or series of events which are incidental to normal employer and employee relations, including, but not limited to, personnel actions by the employer such as disciplinary actions, work evaluations, transfers, promotions, demotions, salary reviews, terminations” or going through the legal process in unrelated matters.

Sometimes employers will retaliate against employees who claim work injuries. Though demotions, write-ups and post-injury terminations aren’t compensable through workers’ compensation, there could be a retaliation or disability discrimination claim. First responders who believe they might be being retaliated against should also reach out to the NAPE/AFSCME, IAFF or FOP representative immediately to help preserve their employment.

We have come a long way in the 15 years since 9-11 in providing protections and workers’ compensation coverage to first responders who make it their job to serve and protect. But what about those who were working and saw and experienced this tragedy who are not first responders? They continue to not be covered for their mental and emotional effects. On this anniversary date, as we remember those who served, we need to continue to fight for everyone who encounters tragic events in the course and scope of their employment and suffers mental illness or conditions, but do not suffer a physical injury. They need the protections workers’ compensation coverage can provide, just like first responders.

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 Government, Legislation and tagged , , , , , , , , , , , .

Nebraska Convenience Store Clerks Need More Protection from Violence

Posted on by

Lincoln residents awoke to find out that a convenience store clerk was killed early on Thursday morning at a store in northwest Lincoln. Unfortunately, this type of violence is not uncommon in Lincoln, Omaharural Nebraska or anywhere else in the United States.

While the federal government has long recognized the problem of violence against convenience store clerks working overnight shifts, it has been left to the states and even cities like Milwaukee and Irving, Texas, to write laws and regulations to protect convenience store clerks from violence.

The Indiana Department of Labor did a comprehensive study of measures taken by other states and cities on how they protect convenience store clerks from violence.  Common practices included bulletproof glass and cages to protect clerks in high-risk areas, security cameras, clear views of cash registers, and having at least two clerks on dangerous overnight shifts. Barriers around cash registers in particular would be crucial in high-risk stores that are robbed regularly because robbers will often jump behind unprotected counters.

Though the city of Omaha has done some proactive policing to protect convenience stores in the recent past, neither Omaha, Lincoln nor the state of Nebraska has any legislation, regulations or ordinances in place to protect convenience store clerks from violence. I would encourage Nebraska’s state senators and city council members in Omaha, Lincoln and other Nebraska cities to put laws in place to protect convenience store workers. If you do not know who your state senator is, you can look that up here. Omaha residents can click here to find out how to contact their city council member, and Lincoln residents can click here to find out how to contact their city council member. Nebraska has legislative elections this fall, and Lincoln and Omaha have city elections next spring. I would urge voters in these races to pay attention to which candidates have a good record and ideas about workplace safety and which candidates value profits over safety.

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 Government, Legislation and tagged , , , , , .