Category Archives: Uncategorized

Bah-humbug to forced volunteer work

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Employers are taking advantage of a gap in Nebraska case law to coerce injury employees into coercive light duty assignments

As temperatures and wind-chills plummeted, the familiar sounds of holiday bells rung out over parts of Lincoln.

But the tradition of holiday bell ringing to solicit donations for the Salvation Army has been marred by insurers/employers who see bell-ringing and other volunteer work as ways to force injured workers back to work.

These arrangements usually involve the employers paying their injured worker a salary, instead of temporary total disability, to work at or for a non-profit. This arrangement creates all sorts of problems for employees such as who they report to for work? There may also be language barriers when non-English-speakers injured at larger employers work for small non-profits without interpreters.

So why can employers get a way with just farming out their injured employees for volunteer assignments. After all, the Nebraska Workers Compensation Court regulates vocational rehabilitation programs through Neb. Rev. Stat. 48-162.01.

48-162.01 uses what amounts to a check list when it comes to vocational rehabilitation for workers. On top of the list is an employee going back to their old job to the bottom of the list – or the final step – is enrollment in a training program. Somewhere in the middle are new job with the same employer or new job with new employer.

Voluntold charity work is arguably neither a new job with a new employer or a new job with the same employer. The employer is still paying the employee, but they are working for someone else. If this was a permanent placement, it would be problematic to say the least.

Green v. Driver’s Management: Creating the legal gap for voluntold light duty?

I believe employers are exploiting a gap in Nebraska workers’ compensation law. Nebraska case law in Green v. Driver’s Management holds that an employee can’t get vocational benefits without permanent impairment or permanent restrictions. Arguably, if an employee is not at MMI, then the vocational rehabilitation rules don’t apply.

So how to employee’s answer those arguments.  First, the court will approve temporary loss of earning power evaluations. These involve vocational counselors as described by the 48-162.01 and court rules.  This practice is justified by the proposition that disability, whether it is temporary or permanent, can still determined by loss of earning power.

Secondly, the Green case holds that vocational benefits aren’t awardable without restrictions or impairments. If an injured worker is getting shifted into a voluntold job, this usually means they have some restrictions. If you concede that disability can mean the same thing whether it is permanent or temporary, then an employer shouldn’t be able to get around the vocational rehabilitation statute just because an employee is not at MMI?

The offices of Rehm, Bennett, Moore & Rehm, 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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Will Nebraska women be forced to pick between work comp or discrimination laws for work-related miscarriages?

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Recent Nebraska case law may force pregnant workers to chose between filing a discrimination or workers’ compensation case for pregnancy-related injuries.

Paid maternity leave is nearly a luxury in the United States – particularly for lower-wage hourly workers in the service industry. But pregnant workers in Nebraska have some protections in the way of anti-discrimination laws and workers’ compensation laws.

But unfortunately, pregnant workers in Nebraska may have to pick between discrimination and workers’ compensation laws if work causes a miscarriage or complicates a pregnancy.

Filing a pregnancy discrimination claim if the discrimination causes a physical injury? Maybe not.

It would stand to reason that if an employer fails to accommodate a pregnant worker by giving them help with manual labor and that manual labor leads to a miscarriage or other complications, you would have both a pregnancy discrimination case and a workers’ compensation case.

The Nebraska Supreme Court might beg to differ.

In Dutcher v. Nebraska Department of Correctional Services, the Nebraska Supreme Court held that so-called exclusive remedy provision of the Nebraska Workers’ Compensation Case prevented an employee from suing their employer under the Nebraska Fair Employment Practices Act for being fired due to a disability that was caused by her work injury.

Dutcher is a bad employee’s case and it will get a full analysis soon. But one implication of Dutcher would be that an employer could argue that an employee is impermissibly trying to “double-dip” if they alleged pregnancy discrimination for a failure to accommodate that also caused a work injury where they collected workers’ compensation benefits.

Arguably, pregnancy is distinguishable in that pregnancy would not be a condition that be covered by workers’ compensation in Nebraska. Pregnancy isn’t caused by a work injury. Would an employer be forced to cover a pregnancy under workers’ compensation for a pregnancy from consensual sex on the job? Would an employee who was raped on the job be forced into the exclusive remedy of workers’ compensation if they were impregnated? The answer should be no and no. But I think Dutcher could quite possibly limit the protections of pregnant workers who get injured on the job when an employer fails to accommodate their pregnancy.

Pregnancy discrimination in Nebraska

Nebraska changed the Nebraska Fair Employment Practices Act to ensure employers of 15 or more to provided reasonable accommodations for pregnancy and pregnancy-related medical conditions. I would argue Nebraska law could provide more of a duty for covered employers to accommodate an employee with a disability. Nebraska law spells out specific reasonable accommodations for pregnant workers such as breaks, help with manual labor and temporary light duty jobs that aren’t generally required for disabled employees.

Damages under the Nebraska Fair Employment Practices Act can include back pay, front pay, attorney fees and compensatory damages. In plain language compensatory damages means pay for pain and suffering and emotional distress. Those pain and suffering damages aren’t available under workers’ compensation.

But what about employee’s working for employers with fewer than 15 employees? If they are employed in Omaha or Lincoln they can file a charge with a municipal human rights agency for failure to accommodate a pregnancy.  

If the failure to accommodate pregnancy causes a miscarriage or otherwise forces a pregnant worker to seek medical treatment, they can also file a workers’ compensation claim in Nebraska.

Workers’ compensation for pregnancy in Nebraska

I think miscarriages or other complications to pregnancy would be covered by workers’ compensation in Nebraska. I think this for two reasons: 1) Nebraska workers compensation covers work injuries from overuse or repetitive use and 2) Nebraska has contributing factor causation which means work can combine with other factors to cause an injury and still be covered by workers’ compensation.

All employees are covered by workers’ compensation in Nebraska from the first day of their employment. Workers’ compensation also covers all medical bills from a work injury. So even if an employee isn’t covered by the Nebraska Fair Employment Practices Act,  isn’t covered by  the Family Medical Leave Act and/or doesn’t have health insurance, workers’ compensation should cover any medical expenses related to a physical injury from an employer unreasonably forcing a pregnant worker to work.

The offices of Rehm, Bennett, Moore & Rehm, 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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Louisiana as model of coverage of mental-mental injuries in Nebraska workers’ compensation?

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Summary: Nebraska would take a step in right direction in protecting vulnerable retail and fast food workers by providing some baseline workers compensation coverage for all workers for purely mental injuries. Louisiana is one model Nebraska could use.

Convenience store clerks and fast food workers are routinely victimized in armed robberies. But depending on where they live, they may not have workers’ compensation for the mental trauma caused by being subjected to armed threats.

In workers’ compensation lingo these injuries are referred to as “mental-mental” injuries – mental trauma without a physical injury. If you read this blog, you know retail and fast food workers lack those protections in Nebraska.

But thanks to a social media interaction with a Louisiana workers’ compensation lawyer, Jenny Barber Valois, I found out that retail and fast food workers in Louisiana can receive workers’ compensation for mental-mental injuries that arise out of violent armed robberies.

The main advantage of Louisiana “mental-mental” law over Nebraska law, is that Louisiana law applies to all workers covered by their act. In Nebraska, only first responders can collect mental-mental benefits. Both Nebraska and Louisiana require workers to be subjected to unusual and extraordinary stressors on the job to be eligible for workers’ compensation benefits.

But Nebraska first responders would give up a lot of protections if Louisiana mental-mental law applied to them.

Louisiana law requires proof of mental-mental injuries by clear and convincing evidence, where Nebraska law only requires first responders prove their injuries by a preponderance of the evidence. Louisiana only allows psychiatrists or psychologists to testify as to causation of mental trauma injuries.

This is a tough standard because this excludes general practitioners who often provide mental-health care.  At least in rural Nebraska, this would be an even harder standard to meet due to the shortage of mental health providers.

In contrast, Nebraska law allows first responders to prove their cases with “mental health professionals” which allows general practice doctors and most counselors to help prove mental-mental injuries. Counselors are not defined as “Rule 10” experts in the Nebraska Workers’ Compensation Court.  This means their testimony could not be used to prove causation of a physical-mental injury for a non-first responder.

In short, Nebraska has great mental-mental workers’ compensation laws for first responders but non-existent protections for everyone else – including vulnerable workers like convenience store clerks and fast food workers. Louisiana at least provides a baseline of protection from mental-mental injuries to all workers, even their law raises difficult substantive and practical barriers to getting mental-mental benefits. I believe it would be a step in the right direction for Nebraska to adopt Louisiana’s baseline of protection for mental-mental injuries for non-first responders. Something is better than nothing.

The offices of Rehm, Bennett, Moore & Rehm, 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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New DOL rule on employee classification will have minimal impact on Nebraska law

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Last week the United States Department of Labor announced it was changing its rule about who was an independent contractor and who was an employee.

This rule, if implemented, is newsworthy because it defines who the Department of Labor thinks is entitled to protections under laws such as the Fair Labor Standards Act which entitles employees to minimum wage and overtime pay protections. If enacted it may lead to a broader definition of employee less favorable to so-called gig economy companies such as Uber. This could give the Department some leverage of employers if they decide to prosecute wage claims against employers.

But the rule change is a different story for individual claimants.

Let’s put aside the fact that federal courts may not accept the Department’s interpretation. Let’s also put aside the even management-side bloggers like Eric Meyer don’t think the rule change changes the standard all that much.

But even putting aside those issues, the proposed changes will have little to no impact on state laws. As I’ve been pointing out for years, states make their own determinations about who is an employee and who is a contractor and who is protected under their laws regardless of federal law.

For example, Nebraska’s minimum wage is $9.00 per hour and instead of the federal minimum rate of $7.25 per hour. Nebraska also lacks an outside sales exemption like federal law which makes it easier for sales workers to bring wage claims.

States can also apply different sets of standards about who is an employee for the purpose different laws. Under Nebraska Employment Security Act, employees are covered under the more employee-friendly ABC Test for the purposes of unemployment benefits. But in order to get workers’ compensation benefits an employee show they are an employee under a more restrictive ten factor test.

But commentators like Meyer are correct in arguing that the different standards of who is an employee and who is a contractor often overlap. I would also assert that courts will find ways to bypass the ABC test.

Nebraska law is an example of how the tests overlap and how courts ignore ABC. In Larson v. Hometown Communications (1995), the Nebraska Supreme Court applied the ten factor test to hold a 10 year-old newspaper carrier hurt on the job was an employee for the purposes of the Nebraska Workers Compensation Act.

But the court came to a different conclusion on a similar employment arrangement in Dernier v. Omaha-World Herald. (1997) In that case, the Supreme Court bypassed the ABC test under Neb. Rev. Stat. §48-604(5) then applied the ten factor case to hold Dernier was a contractor for the purposes of unemployment benefits.

Please don’t take this post to mean that I think the DOL’s rule change is meaningless. Some state’s may follow what the feds do. Some federal judges may be willing to use the new federal rule is a thumb on the scale in a close case. But from my experience, at least at a state law level, state court judges are going to apply controlling state law with little or no deference given to federal rules that interpret parallel federal laws.

The offices of Rehm, Bennett, Moore & Rehm, 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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Court affirms no-fault principles of workers’ compensation laws

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Blogger Thomas Robinson recently posted about a North Carolina decision that holds something that is well-established law in Nebraska — a trucker fired by their company for an accident where they were found to be at-fault cannot be denied temporary total disability if they were injured in the accident because of the termination.

The North Carolina court held that allowing an employer determination of fault to deny temporary disability benefits would open the door to abuses by employers. The decision raises interesting but persistent questions about fault in supposedly no-fault workers compensation laws.

Fault is mostly factored out of workers’ compensation laws in favor of certain and defined amounts of compensation for work injuries. This is known as the “grand bargain” of workers’ compensation. It’s safe to say that the North Carolina court believed that allowing employers to penalize negligent employees undercut the grand bargain of workers’ compensation.

Nebraska law goes farther than North Carolina law in this situation. Nebraska law holds that a denial of benefits for ordinary negligence doesn’t even create a reasonable controversy about entitlement to benefits. That means if an employer doesn’t pay TTD they can be subjected to paying attorney fees and a 50 percent penalty on back due benefits.

The so-called penalties and fees provision of Neb. Rev. Stat. 48-125 serves as Nebraska’s version of bad faith laws. One former trial judge of the Nebraska Workers Compensation court described 48-125 as a yipping porch dog in comparison to the more robust bad faith laws in other states.

But when employers are faced with strong penalty and fee arguments, they tend to pay previously disputed TTD benefits. So truckers facing a denial of temporary benefits due to being involved in an at-fault accident have a strong legal hand — at least in the Nebraska Workers Compensation Court.

But do they have other legal hands to play? A termination shortly after a work injury at least creates the appearance of retaliation. It is unlawful to retaliate against a worker for filing a workers compensation claim in Nebraska.

Injured workers face many hurdles to bringing a successful workers’ compensation retaliation claim. But sometimes trucking companies have policies about property damage and lost time accidents that can almost serve as admissions of unlawful intent. These policies are often applied more harshly against new employees who are more likely to get hurt on the job.

One interesting part about the North Carolina decision is that the employer attempted to deny temporary benefits to the worker on the theory that they had declined a light-duty assignment since they were fired. The North Carolina court found that since the termination was related to the accident, that the employer could not meet their burden.

Nebraska gives employers the ability to stop benefits if an employee refuses medical treatment or vocational rehabilitation. But employers have a fairly difficult burden in doing so. The question is whether a light duty assignment would constitute vocational rehabilitation for purposes of the Nebraska workers’ compensation act. Conventional wisdom is that vocational rehabilitation benefits only start when an employee reached maximum medical improvement. I would think that an employer shouldn’t have greater rights over return-to-work issues depending on whether an employee is pre or post-MMI, but I don’t know if a court has determined that issue in Nebraska.

The offices of Rehm, Bennett, Moore & Rehm, 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’s weak laws on bad faith in workers’ compensation enable employer insistence on resignation as a condition of settlement

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Nebraska’s lack of a robust law on bad faith in workers’ compensation give employers the power to insist on forced resignations as a condition of receiving a settlement in a workers’ compensation case. While some employees are happy to resign and other employees may have good reason to accept these arrangements known as “global settlements”, they often force difficult choices on injured workers in Nebraska.

Nebraska’s comparatively weak laws on workers’ compensation bad faith give insurers/employers/claims administrators leverage at many points in a workers’ compensation case.

But I think one under-discussed aspect of weak bad faith laws is the prevalence of “global settlements” in Nebraska. In Nebraska workers’ compensation the term “global settlement” means a settlement of not just the workers compensation claim, but all claims against the employer.

If the employee is still employed with the defendant in the workers’ compensation, global settlement means that an employee needs to resign and sign a severance agreement in order to settle their workers compensation case.

Early in my career, one insurance defense lawyer told me that their client insisted on global releases because they “didn’t want their employees driving to the plant in an Escalade after they settled their case.”

In my mind, forcing an employee to give up their job is a bad faith practice. But since the Nebraska Workers Compensation Court had limited jurisdiction, I doubt whether the court could govern the practice. Since demands to resign are made as part of settlement negotiations, I suspect a civil court would view them as privileged communications and not evidence of retaliation. In short, I think employers/insurers/claims administrators are exploiting a gap in the law created by Nebraska’s weak bad faith laws.

But sometimes employees are willing to accept global settlements for various reasons.

Sometimes this insistence on a release of all claims to settle a workers’ compensation case is an easy decision for an employee. The employee may have a new job, they may be too injured to go back to work, maybe they were planning on retiring or maybe the employer is just lousy. Regardless sometimes employees are more than happy to resign.

But for the employee who is still employed and relies on their employer for health insurance, an employer/insurers insistence on resigning to settle their workers compensation case is a harder decision. Particularly for an employee who is being accommodated for their injury, it often makes sense to go to court rather than resign in exchange for what amounts to a small severance in addition to what their workers compensation case is worth. But the decision to go to trial only makes sense if an employee doesn’t have a reason to compromise their workers’ compensation case. That’s not always the case, so global settlement offers force more difficult decisions.

The insistence on a “global settlement” also complicates further complicated situations where an employer is retaliating against an injured employee short of termination or demotion. These forms of retaliation often take the forms of unreasonable accommodation for the work injury. In order to settle their workers compensation claim, the employee would have to settle that claim.

Sometimes it makes sense to enter into a global settlement if you have a viable discrimination case. Workers’ compensation settlements aren’t taxable while employment law settlements are taxable. Usually, you can shift most of the value of the employment law settlement into the tax- free workers compensation settlement in a “global settlement” arrangement.

But in order to value an employment law case you need to do discovery and you also need some leverage over the employer — which usually takes a fair amount of discovery. I believe there is meaningful overlap between what is discoverable in a workers’ compensation and employment law case – particularly when it comes to temporary disability and accommodation of work injuries.

Further, because of how exhaustion of remedies requirements work in discrimination claims and the fact the Nebraska workers compensation court tends to move faster than state and federal trial courts, a workers’ compensation case will typically be ready for trial much sooner than an employment law case. In practical terms an employer may not be prepared to settle an employment law case until after a summary judgment ruling. That ruling could come down well after a trial in a workers’ compensation case.

So again, the employee has reason to try their workers compensation case if an employer insists on settling all claims through a global release. Again this can be a risky proposition for an employee if the employee would have good reason to settle the workers compensation case regardless of whether they had an employment law case.

The offices of Rehm, Bennett, Moore & Rehm, 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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The nearly forgotten union activism of a Husker football legend

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Former Nebraska center, Dave Rimington, with the Philadelphia Eagles the season after his union activities during the 1987 NFL Players’ strike lead him to be cut by the Cincinnati Bengals.

Most of us will never get a mega-buyout like Scott Frost, but some of us may suffer adverse consequences for standing up for workplace justice like former Nebraska star center, Dave Rimington, did during the 1987 NFL Players’ Strike.

The $15 million platinum parachute received by former Nebraska quarterback and head football coach, Scott Frost — four years of salary with no questions asked after 4 plus years of sub-par job performance is something 99.9999 percent of workers will never experience.

However, another Nebraska football legend had on-the-job experiences that are more common and applicable for the rest of us; Dave Rimington.

For those of you who aren’t football fans, Dave Rimington was a two-time All American center at the University of Nebraska, two-time Outland Trophy winner who even finished 5th place in Heisman Trophy balloting in 1982. He went on to a seven-year NFL career. The Rimington Trophy for the best college center bears his name.

But this post isn’t about his gridiron heroics, this post is about Rimington’s experience as a union leader during the 1987 NFL players’ strike.

Rimington was drafted by the Cincinnati Bengals in 1983 where he first paired with his now long-time friend quarterback Boomer Esiason.  Rimington and Esiason were both Bengals team leaders in the National Football League Players’ Association (NFLPA), the union that represents NFL players.

In 1982, the players staged a moderately successful in strike for better pay and benefits, so they decided to try again in 1987.

Except in 1987, the players strike didn’t succeed. The owners were able to bring in scabs/replacement players to slake the demands of fans for football. Many high-profile players, such as future Hall of Famer Joe Montana, crossed union picket lines.

In short, the owners were able to break the strike.

Rimington faced consequences from the Bengals for his role in the strike. In an article from ESPN/ABC in 2001, Rimington stated he believed the Bengals would not let him return from injured reserve as a result of his activities during the strike.  In other words, his employer would not let him return to work after a work injury after engaging in the protected activity of engaging in a labor strike. (Esiason criticized the Bengals’ action at the time in an act of solidarity. He believe it was a false or pretextual reason)

In even fewer words, the Bengals retaliated against Rimington for his union activities. Many less known and lower-profile employees have faced the same situation.

And like other employees facing employer retaliation, their employer may have had some plausible excuse to discipline Rimington. According to press reports from the time, Rimington was videotaped keying the car of a scab/replacement player. The Bengals fined Rimington for that alleged misconduct. Again, some employee misconduct doesn’t always defeat an employee retaliation claim, but the broader point is that even imperfect employees can assert their rights in the workplace.

From reports at the time, Rimington expressed regret at the outcome of the strike. Not every employee who stands up to their employee gets a Hollywood ending. But nonetheless, some employees do get positive outcomes when they stand up for themselves on the job – either individually or collectively through their union.

Further, employees do win strikes sometimes. One example is the strike at Kellogg’s last fall. Sometimes even the credible threat of a strike can win concessions from employers as could be the case with a potential railway labor strike where the parties have reached a preliminary agreement. Even a failed strike like the 1987 NFL Players strike can give lessons about how to succeed in the future if people are willing to study history. But there is no history unless people are willing to act. Former Husker Dave Rimington was one of those who were willing to act during the 1987 NFL players’ strike.

The offices of Rehm, Bennett, Moore & Rehm, 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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What Stop WOKE and its inevitable copycats could mean for workplace law

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Laws like Florida’s Stop WOKE undermine the purpose of civil rights laws to reduce unlawful discrimination. The order issuing an injunction against the law by a federal judge contains an interesting discussion of civil rights and workplace law. While “Stop WOKE” types of laws may interfere with an employer’s ability to dictate personnel matters to some extent, they amount to little more than the unhelpful insertion of grievance politics into civil rights laws that protect all employees.

A federal Judge in Florida issued an injunction that struck down provisions of the Stop WOKE Act effecting anti-discrimination training that was pushed by Florida Governor, and GOP Presidential hopeful, Ron DeSantis.

Stop WOKE would have banned discussion of concepts like critical race theory and white privilege in schools and workplaces. Interestingly enough, business challenged Stop WOKE arguing that it interferes with their efforts to combat discrimination in the workplace.

Florida-based and employee-side employment law blogger Donna Ballman has written two scathing takedowns of Stop WOKE here and here. Part of Ballman’s criticism is that Stop WOKE is so poorly drafted that it does the opposite of what its drafters intended.

However, the expected demise of Florida’s Stop WOKE is far from the end of the discussion on the issue. I expect copy-cat Stop WOKE legislation in other states and maybe even in Congress next year. Someone may even have the savvy to draft a Stop WOKE 2.0 that does what the original Stop WOKE intended.

So how will Stop WOKE type laws impact workplace law if and when they are enacted?

Anti-discrimination training and civil rights law

Left out of the discussion about Stop WOKE is how anti-discrimination training is part of civil rights laws. It’s easy to forget about this because so much writing on civil rights laws is authored by lawyers who litigate discrimination cases. However, civil rights acts also seek to eliminate discrimination through education. That is part of the job of the EEOC and parallel state and local civil rights commissions.

But to some extent education is outsourced to employers. The law gives employers reasons to conduct anti-discrimination training.  Evidence of anti-discrimination training can be used as a defense against punitive damages in discrimination cases.

Anti-discrimination training has been a long-time part of workplaces. But efforts to eliminate discrimination have taken on new prominence in the wake of the George Floyd protests. Efforts at eliminating discrimination have also shifted from trying to avoid liability into more proactive diversity, equity and inclusion (DEI) initiatives, discussions of unconscious bias and discussions about “white privilege.”

White privilege is the idea that white people have certain unearned benefits because of their skin color due to long-standing discrimination against people of color. The concept of white privilege seems to gall some conservatives and it seems like discussions of that topic are the target of legislation like Stop WOKE.

The First Amendment, workplace law and STOP Woke

The State of Florida argued for against Stop WOKE on 1st Amendment grounds because employees must attend these training so they are a captive audience.

The Federal District Court judge turned that First Amendment argument on its head. The court agreed that Stop WOKE actually violated the 1st Amendment rights of employers by prohibiting them talking about unconscious bias and white privilege based on viewpoint discrimination which is strongly limited by the 1st Amendment

The Court went further to argue that making discussions of unconscious bias and white privilege unlawful also undermined how the 1st Amendment is applied to anti-discrimination laws. To some extent, courts have incorporated the criticism that anti-discrimination laws could violate the 1st Amendment in general by creating a very employer- friendly standard for harassment that attempts to protect the 1st Amendment rights of those who would be accused of discrimination prohibited by civil rights laws. Courts have gone so far to say that civil rights laws aren’t workplace civility codes.

In contrast, Stop WOKE would prohibit any discussion of white privilege, unconscious bias, etc no matter how it is presented. In essence such discussion is per se unlawful. If that standard applied to harassment on other classes protected by civil rights laws, employees would have a much easier time winning harassment cases.

The court also pointed out that the captive audience doctrine has limited application outside of laws regulating union organizing. Federal courts have interpreted the captive audience doctrine in a way helps employers in efforts to stop union organizing. Some labor advocates point out that DEI efforts often include so-called “affinity groups” of certain categories of workers and that those affinity groups are often sold as ways for employers to avoid unions.

I suppose you could take contrarian-left view and argue Stop WOKE is pro-worker in that it would curtail certain anti-union activities and would it make it easier for employees to sue their employer. That would be really short-sighted even if you completely discount legitimate concerns over diversity, equity and inclusion. Conservatives are marching in lock-step with some Democrats in gutting employment protections for the sake of the “gig economy” and big tech. Legislation about Stop WOKE is about inserting culture war grievance into civil rights laws that protect everyone from discrimination in the workplace. They have little or nothing to to do with improving workplace conditions for the bulk of workers.

The offices of Rehm, Bennett, Moore & Rehm, 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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