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The impact of the Biden anti-trust executive order on workers’ compensation

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Earlier this month, the Biden administration announced a broad executive order designed to counter anti-competitive practices by business for the benefit of consumers and workers.

The Biden order concerns anti-trust law which regulates business practices. I believe the proposals will have some benefit to workers hurt at work. But I also believe that more aggressive measures not mentioned in the Biden order would have a stronger impact on injured workers. Unfortunately, from a practical perspective, executive orders and administrative rule making could be blocked by Federal courts.

Non-compete agreements for fast-food and other low wage workers

The Biden order would seek to have the Federal Trade Commission, FTC,  seek to eliminate non-compete agreement among fast workers. These agreements have drawn bi-partisan ire and even merited a trademark “Come on” from President Biden.

In the context of workers compensation, these non-compete agreements can deter injured workers from seeking lighter work at competing employers.

While non-compete agreements among restaurant and retail workers are broadly opposed, other anti-trust measures are more controversial, but probably more beneficial to injured employees.

Workers compensation and coordination

One school of thought on anti-trust holds that anti-trust law should regulate “coordination” rights” regardless of whether a corporation is coordinating with other entitles or coordinating within a business. I wrote last summer how anti-trust enforcements centered on coordination rights could limit worker misclassification. Anti-trust enforcement focused on coordination rights could also crack down on the use of occupational medicine clinics and medical examiners used by insurers/employers to reduce workers’ compensation benefits paid to workers.

The Biden order does not address these practices. But I think the order makes some nods towards the coordination rights theory of anti-trust by limiting how employers share information about benefit levels. But the main thrust of the Biden order is to ensure competition between businesses.

But even this less aggressive view of anti-trust is anathema to proponents of the “consumer welfare” school of anti-trust who hold that monopoly or oligopoly is fine so long as consumers get cheap or free stuff.

Anti-trust and the federal courts

Of course, the consumer welfare school of anti-trust is influential, if not dominant, in the Federal courts. Ultimately, most if not all of the  new proposed rules in the Biden order, will be challenged in the federal courts. Though in the past, federal judges have deferred to the judgment of executive agencies in rule making, federal courts are less deferential to executive branch rule-making in recent years

Ultimately, if  anti-trust law is going to benefit workers, those changes to anti-trust laws need to come from Congress and state legislatures.

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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A new federal thumb on the scale for COVID occupational disease claims?

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Last month the U.S. Department of Labor announced an emergency standard for COVID-19 safety for health care workers due to the risk of COVID-19 exposure.  The regulation may make it easier for workers in states like Nebraska to bring workers’ compensation cases for COVID-19 exposure on the job.

Nebraska allows workers to recover for occupational diseases in addition to injuries or conditions caught directly arising out of and in the course of their work duties. An occupational disease is one that is particular to an occupation or line of work. The Department of Labor’s findings about COVID-19 exposure in health care, could be a thumb on the scale for workers, or their surviving dependents, trying to bring a workers’ compensation claim.

While the new rule is helpful, it may not be game changing. Workers compensation laws are state laws. A federal regulation wouldn’t bind a state court or agency deciding a workers’ compensation case. Additionally, many states have passed COVID-19 presumptions under their state’s workers compensation laws for health care workers. This means that if certain classes of workers catch COVID-19, it is presumed to be work-related. This forces employers to show some non-work-related exposure to avoid liability,

Nebraska has not passed any sort of COVID-19 presumption for any workers.

Some employee and public health advocates have criticized the new standard as not covering more workers. I sympathize with that view. I will not blindly cheer for a Democratic administration. The Obama administration left a lot to be desired when it came to workplace safety issues – a lot. But the new COVID-19 standard for health care workers is an improvement on no standard.

Earlier in the pandemic, when Eugene Scalia was Labor Secretary during the Trump administration, the Department of Labor implemented rules that it made it harder for employees to track workplace COVID exposure. I can’t argue that a thumb on the scale for workers/labor is better than a thumb on the scale for management/capital. But the federal government needs to be more aggressive in enforcing workplace safety rules.

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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How essential workers are excluded from the “grand bargain” of workers’ compensation

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If you asked the average person on the street, “If convenience store clerks at the same store were subjected to violent crimes, including murder, three times in the last five times, do you think you could bring a negligence case if the store failed to protect its worker from a violent attack ?” Most people would say yes.

Candidly, many people with legal training would say the same yes, but for the exclusive remedy of workers compensation.

The exclusive remedy rule is at the heart of the so-called “grand bargain” of workers compensation that provides limited benefits in exchange compensation regardless of employee or employer fault.

Like most workers compensation lawyers, I can recite that last paragraph in sleep. But sometimes employer-conduct can and should cause workers compensation lawyers to put aside technical legal thinking.

The convenience store I described in the first paragraph is the Kwik Shop at 14th and Adams in Lincoln, Nebraska. A clerk at that store was assaulted in late June. A clerk was murdered in 2016 and there was in assault on a clerk in 2020.

That store has done little to protect workers from violent crime. But workers compensation laws in Nebraska do little to incentive stores to protect late night convenience store clerks because they don’t cover purely mental trauma injuries. In other words, if a robber points a gun at a clerk, but doesn’t hurt them physically, that clerk can’t collect workers compensation benefits for the mental trauma.

But even if there is a physical injury, an employee is limited to benefits based on their wages. Employees don’t have the option of filing a negligence case where damages, in theory, are unlimited.

Retail workers are in a similar boat to other essential workers who had difficulties claiming workers’ compensation benefits due to COVID-19 exposure. In order for COVID-19 exposure to be covered by workers’ compensation they need to show either the injury arose out of and in the course and scope of employment or is a disease particular to their job. Those can be difficulty standards to meet and it prevented many workers from even seeking benefits.

Of course some states created presumptions of workers’ compensation coverage for COVID-19 for essential workers, but we did not in Nebraska.

So in short, essential workers are limited to workers compensation coverage for obvious on-the-job hazards that could be prevented or mitigated by their employers. But due to the structure of workers’ compensation laws, many of those hazards aren’t covered by workers’ compensation.

Of course other essential workers such as delivery drivers and taxi drivers are defined as contractors as so-called gig economy companies attempt to re-write our social insurance and employee classification laws to enrich their shareholders.

I think the structural weaknesses of workers compensation laws lead attorneys to look for ways to sue employers in tort, bad faith or even under retaliation laws. But these laws can be watered down by courts and civil litigation only pays people for harms after they happen. Stronger workers compensation laws that protected all workers from obvious hazards could make other types of litigation less necessary.

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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How the federal government, the State of Nebraska and the City of Lincoln fail convenience store clerks

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A clerk at the Kwik Shop at 14th and Adams Street in Lincoln was severely beaten during a robbery last weekend when a robber reached for cash in a cash register, pushed through a barrier and jumped over the counter to beat the clerk.

News reports about that store reveal a clerk was murdered in 2016, a clerk was assaulted in 2020 and the store was robbed in 2008. The Kwik Shop at 14th and Adams is the proverbial poster child for the failure of the federal government, the State of Nebraska and the City of Lincoln to effectively protect convenience store workers.

How the federal government fails in convenience store clerks

In the wake of the July 2016 murder of a clerk at the 14th and Adams Kwik Shop, I wrote about OSHA’s failure to implement safety standards for convenience stores. The Indiana Department of Labor did a study about convenience stores and showed barriers that prevented robbers from reaching into cash registers and jumping behind counters deterred robbers.

Despite the history of violence at the store, the Kwik Shop at 14th and Adams Street still lacks those protections.

An OSHA rule would let OSHA cite convenience stores specifically for failing to protect workers from violence.

How the state of Nebraska fails convenience store clerks

The state of Nebraska has failed to implement and statutory law or regulations that protect convenience store clerks. In theory workers compensation laws regulate working conditions by making employers pay for injuries to their employees. But retail workers are not compensated for solely mental injuries (known in workers compensation lingo as “mental-mental”). So for example, if a convenience store clerk has a gun pointed in their face, but not physically assaulted, that mental trauma is not covered by workers’ compensation.

But if convenience store owners did have to pay for mental trauma injuries to their employees, they would find ways to minimize the chance of those mental trauma injuries. Measures like bulletproof glass would make it harder for robbers to jump over counters and to threaten workers with guns.

The State of Nebraska has workers compensation for solely mental injuries for first responders.  Recent legislation has expanded the number of employees who are deemed first responders and has made it easier for some first responders to prove their cases for solely mental injuries. No legislation has been introduced that would allow retail workers or convenience store clerks from receiving mental-mental benefits.

How the City of Lincoln fails convenience store clerks

Some cities have implemented safety standards for convenience store clerks. That list does not include Lincoln, Nebraska. I think public safety officials in Lincoln have also displayed a somewhat cavalier attitude about convenience store violence. After the murder of the clerk at the 14th and Adams, Kwik Shop, then Public Safety Director Tom Casady talked about how rare convenience store murders and shootings were. This despite the fact that same store was robbed in 2008. Lincoln’s then police chief, Tom Bliemeister stated that he was unsure about why Lincoln has above-average murders in 2016. Why that question may have some merit, research was clear about the risks to employees working late night retail. That store had previously been subject to a robbery. I think public safety officials in Lincoln don’t think about how public safety is often workplace safety.

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 the Biden administration create a federal heat standard?

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Nebraska and much of the western United States have been struck with sweltering temperatures this week. The hot weather serves to remind me that there is still no federal standard for workplace heat exposure.

NBC ran a story earlier this week that updated and explained efforts to create a national standard for heat exposure in the workplace. The Department of Labor, through the Occupational Safety and Health Administration, can implement such a rule. Some states, like California, have implemented rules about heat exposure in the workplace. The California rule seems like it codifies common sense about water breaks and shade.

Hopefully our new Labor Secretary, Marty Walsh a former union leader, implements a heat exposure rule. The Obama administration DOL rejected a heat exposure rule in the blazing hot summer of 2012.

Heat exposure and workers compensation

Nebraska does not have a heat exposure rule like California. However Nebraska workers compensation law covers heat-related injuries. At the very least, workers’ compensation provides some baseline level of regulation for employers when it comes to heat. But compensation in workers’ compensation cases is limited and no amount of money can replace the life of a family member. Additionally, some heat-related injuries like heart attacks have tougher causation standard which make it more difficult for workers or their dependent family members from recovering benefits.

The advantage of an OSHA rule for heat exposure is that means that OSHA can sanction and shame employers who violate the rule.

Workplace heat exposure and climate change

Climate change is expected to raise summer temperatures in Lincoln, Nebraska by 5.5 degrees Fahrenheit by 2050 and by 11 degrees by 2100. Heat will be an even larger occupational risk than it is today. Chicago experienced a heat wave in 1995 that killed 749 people. This little remembered natural disaster could be a precursor for more heat-related health problems and deaths in the future. One argument against a national heat standard is that it doesn’t account for “regional variations” in climate. But if climate scientists are correct, most if not all, areas of the United States will be at real risk for heat-related injuries and illnesses in the future. OSHA and Congress should take action to protect 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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Yes, your employer can require you to take the COVID-19 vaccine

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Last week the United States Equal Employment Opportunity Commission (EEOC) affirmed that employers could require employees to receive the COVID-19 vaccine so long as they comply with the Americans with Disabilities Act and other anti-discrimination laws,

While most people were happy to receive COVID-19 vaccines, some can’t receive the vaccine because of either medical, religious reasons or pregnancy. Some just refuse to get vaccinated period.

So what options do employees who are unable or unwilling to take the vaccine have on the job?

On the flip side, do employees have legal protections against co-workers or employers who refuse to protect employees from the risk of COVID-19.

Employer-mandated vaccines

The health care industry has dealt with mandatory vaccinations in the context of the flu virus for years. In short, the accommodation, either for medical or religious reasons, was often to wear a mask.

Obviously, some employees refuse to wear masks. In fairness, the use of masks for flu prevention before the COVID-19 pandemic was questioned. There is also a strain of disinformation circulating on social media that goes along the lines of: I have a medical reason not to get vaccinated or wear a mask and under HIPPA no one can ask me for that reason. If they do ask, I can sue them. Another myth involved the 4th Amendment right to privacy which only applies to government and not private employers.

This is a blatant falsehood. Anytime a worker is asking for an accommodation for medical condition, whether a work injury or personal injury, the employee gives up a fair amount of privacy as to that medical condition. Yes, employers are required to reasonably accommodate disabilities under the Americans with Disabilities Act. But in order to ask for a reasonable accommodation an employee often needs to share detailed medical information with their employer.

So in short, if you refuse an employer request to take a vaccine, you need a good reasons and should be able to substantiate it and share that reason with your employer.

I am pro-vaccine. I also believe vaccination policy is a workplace safety issue for reasons explained below. But I feel some sympathy with those subjected to mandatory vaccines at work. Throughout the pandemic, business has denied liability for COVID-19 spread in the workplace. But if the reasons for mandatory vaccinations is employee and customer safety, how can business turn around and argue that they aren’t liable for COVID exposure in the workplace? It seems like the contradiction can be reconciled through employers desire to exercise dictatorial control over their employees in the workplace.

What about workplace safety

This post my seem like I’m being overly sympathetic to COVID deniers and anti-maskers. I’m not. I am very disturbed that these types have taken to social media to attack former OSHA deputy assistant secretary, Jordan Barab, for raising serious concerns about the lack of OSHA guidance in retail workplaces in light of the latest CDC guidance that states vaccinated people can go largely to unmasked indoors.

Workers who are still concerned about COVID-19 exposure are in a difficult spot. While workers in certain industries can sue employers directly for safety violations, workers in the retail industry cannot. They need to rely on state law claims if they want to take direct action. I think one good idea for legislation would be to create a whistleblower act for retail workers.

OSHA is starting to sue employers for retaliating against employees, but those suits are just now starting well over a year into the pandemic. While it’s good that OSHA is starting to bring cases on behalf of employers, OSHA only brings suits in a small number of cases where retaliation is alleged.

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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Is it better that SCOTUS punted on air ambulance cases

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The Supreme Court refused to hear an appeal from a Texas Supreme Court decision that allowed the State of Texas to regulate air ambulance charges in workers’ compensation cases.

The Supreme Court’s refusal to hear the case leaves in place a patchwork of state and federal court opinions about whether the Federal Aviation Act pre-empts state workers compensation laws that limit medical expenses for air ambulances.

Air ambulances and federal pre-emption is a dry and often esoteric, maybe even boring topic. But as Jon Gelman pointed out in his post on the decision, the right to regulate medical expense in workers’ compensation case helps states manage the cost of workers’ compensation. As I’ve pointed out at near ad nauseam, workers’ compensation laws are state-based laws. So, that’s why the air ambulance pre-emption issue matters to workers compensation.

So, what do I think of the Supreme Court’s decision to punt on the issue? Bluntly, I’m kind of relieved. I base my feelings on my big picture views of the Supreme Court and my very narrow interests in Nebraska workers compensation laws.

Do you really want Amy Coney Barrett and friends making decisions about workers comp.?

Well, do you?

From an academic perspective, the Texas Supreme Court decision on workers compensation and air ambulance billing is interesting. It’s really a discussion about the nature of workers’ compensation. Is it primarily an insurance program or is it primarily a law that regulates the relationship between employee and employer? My fear was that the current Supreme Court could pick up on any of the threads within the Texas case and make the law worse for injured workers.

Workers compensation as a law regulating the relationship between labor and management

So, if workers compensation is law that regulates the workplace, the dissent in the Texas decision held that air ambulances charges would be pre-empted. That would be a bad outcome for workers on air ambulance charges. It could also open the door for pre-emption on other issues to the detriment of employees.

Workers compensation as a law regulating insurance

The concurring opinion in the Texas held that their state’s regulation of air ambulance charges in workers’ compensation cases was not pre-empted because workers compensation is a law regulating insurance. Under the federal McCarran-Ferguson Act those laws are state laws and not subject to pre-emption. At least two trial Judges in the Nebraska Workers Compensation Court take this approach. Since the Supreme Court hasn’t weighed in on the issue, I can take this approach on air ambulance charges for the benefit of my clients in Nebraska.

But the Texas court also held that air ambulance charges weren’t pre-empted based on an originalist view of federalism. The Texas opinion starts out about states retaining some sovereignty when entering into the Union. In my view this language seems real overwrought. If I was a law student reading that opinion today, I might put a note like “Sir, this is a Wendy’s” by that passage.

Some plaintiff’s lawyers will go down the state’s rights rabbit hole. But I don’t like the state’s rights approach because it gives states the rights to implement lousy workers compensation laws. Texas is a model for how the state’s rights approach fails workers.

McCarrran-Ferguson: State’s rights lite?

McCarran-Ferguson is a more pragmatic argument against workers compensation pre-emption. But McCarran Ferguson is based on some dubious legal fiction. McCarran-Ferguson was passed to more or less repeal the Southeastern Underwriters case. That case held that insurance was interstate commerce.

Now the notion that insurance is interstate commerce would seem obvious to most people, but insurance wasn’t held to be commerce during much of the Lochner era. The Roberts court also seemed to question whether insurance was interstate commerce when they upheld the Affordable Care Act in 2012.

My other problem with McCarran-Ferguson is that it limits how we think about workers’ compensation.  It locks judges and lawyers into adopting a legal fiction in order to give workers a fair outcome in workers compensation cases regarding air ambulance charges and other issues where federal laws could undercut recovery under state workers’ compensation laws.

McCarran-Ferguson also cements “states rights” thinking about workers compensation. Such thinking precludes the possibility of federal intervention for the benefit of employees that helped workers in the 1970s and 1980s. Originalist thinking and the Lochner era thinking behind McCarran Ferguson by plaintiff’s attorneys also prevents thinking how to make much needed reforms to our social insurance system in general. 

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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Human capital disclosure rule effects being felt in Nebraska workers’ compensation

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Most observers expect newly-confirmed Labor Secretary Marty Walsh, a former leader in the Laborers’ International Union, to focus on workplace safety. But one of the most immediate impacts of a federal executive branch on workplace safety is coming from an unexpected source – the Trump administration Securities and Exchange Commission (or SEC)

This potential boon to workplace safety is known as the Human Capital Disclosure Rule which as enacted in November 2020. A  recent call from a client tells me it could already be having an impact.

The human capital disclosure rule

I got a call from a client who works at Tyson. Tyson stock is publicly traded. The client informed me the plant was offering to pay the unpaid medical bills of their employees who were hurt at work.

My first reaction was along the lines of “isn’t that what workers comp. is for, what are they trying to pull?” (I took out the profanity) But then I remembered this human capital disclosure rule.

The human capital disclosure rule was implemented because 85 percent of corporate costs are “human capital” and if investors want to be able to value companies they need to do know the cost of “human capital.”

If you run a meatpacking company, one major component of human capital costs is the price of work injuries. In theory, you should be able to measure those costs through workers compensation. But things are different in practice.

Cost-shifting

In practice those costs of work injuries get shifted on to health insurance, Medicare, Medicaid, Social Security and private disability. This is largely a function of aggressive claims handling practices that make it difficult for injured workers to get workers compensation benefits.

But if investors want to know the costs of work injuries, even a major food processor wouldn’t be able to measure the cost of work injuries. So, companies are improvising with programs like the one described by my client. These special programs could give employers and investors a better idea about the true cost of medical care from work injuries.

Impact of voluntary payments on workers compensation in Nebraska

Payments for work injuries made to comply with the human capital disclosure rule could impact eligibility for benefits under the Nebraska workers’ compensation act. I would argue that such payments would extend the statute of limitations on a claim if they were paid within two years of the last payment of benefits. A voluntary payment of benefits once the statute of limitations two year statute of limitations had run would not extend a claim.

A different take on the human capital disclosure rule in the Biden administration?

The commentary on the human capital disclosure rule states that employers have a lot of discretion about how to implement the rule. Maybe, the more worker-friendly Biden administration may implement tougher standards to force some employers to more accurately measure the cost of work injuries.

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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