Category Archives: Unemployment

How to Apply for Unemployment while Workers’ Comp Is Denied

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As we have blogged before, it is possible to receive unemployment benefits, even though you are off of work because of a workplace injury. . You do not have to be fired to qualify for unemployment benefits. You can get unemployment benefits if you quit for good cause.

One good cause is if you quit because you are not physcially able to do your job. For example, if your work comp claim has been denied, but you have work restrictions that your employer is not accommodating, you can qualify for unemployment benefits.

When I explain this to my client, the question I often receive is how to actually apply for those unemployment benefits. Below is a list of steps:

1.You must be able and willing to work. Often, you will have work restrictions from your doctor when you are injured. Your employer may not allow you to work within those restrictions. If your work comp claim is denied, and your employer won’t accommodate your restrictions, you may apply for unemployment benefits. You must represent that you are able to work (within your restrictions). You cannot qualify for unemployment if your doctor takes you off of work completely. 

2.To apply online, follow the link at NEworks.nebraska.gov to file an application. You will be required to upload a resume and job-search information. If you do not have access to the internet, you may visit a local Job Center at the following locations listed here: https://www.dol.nebraska.gov/Home/AboutUs. Somehow, you must find a way to get internet access because you will need to post your resume online. If you cannot get to a Job Center, check with your local library. Slow internet speed hindering unemployment claims is a problem in rural areas in Nebraska and across the nation.

3. Have the following information ready to complete an application:

  1. Social Security Number
  2. Complete home mailing address, including ZIP code
  3. Telephone number
  4. Email address
  5. County you live in
  6. Driver’s license number or State ID card number
  7. If you select direct deposit, your bank routing number and account number
  8. The company names for all your employers from the past 18 months as they appear on your paycheck stubs or W-2 forms
  9. Complete mailing addresses of employers, including ZIP code and the city in which the business is physically located
  10. Your start and end dates with each employer, including month, day, and year
  11. Your reason for leaving each employer (lack of work, voluntary quit, discharge, leave of absence)
  12. Employment authorization number and expiration date (if a non-citizen)
  13. If you served in the military the past 18 months, DD 214 Member #4 Form

 

4.Communicate with the Nebraska Department of Labor. Often times someone from the Nebraska Department of Labor will call you to ask questions. These questions are often prompted by infornation submitted by your employer Make sure you answer take that call. We wrote a blog back in 2012 where a Nebraska Department of Labor employee said that many unemployed workers would get benefits if they would just answer their phone whwen  the NDOL calls. After you file a new claim for unemployment benefits, you must file a weekly claim for benefits.

5. If your claim is denied, or you are told that you are disqualified from benefits for a certain period of time, you may file an appeal, but the appeal must be filed within 20 calendar days from the date the determination was mailed. You can file an appeal online at neworks.nebraska.gov, in writing by mail, by fax at 402-471-1734), or by email (NDOL.Appeals@nebraska.gov). If filing an appeal by mail, send to: Nebraska Appeal Tribunal, Nebraska Department of Labor, PO Box 98941, Lincoln, NE 68509. If your appeal is in writing, you must state the reason you wish to appeal, and include your signature, Social Security Number and employer’s name. Include the Determination ID from your determination letter.

If you are unsure how to file an appeal, contact a lawyer or someone at our firm.  The Nebraska Department of Labor tries to schedule hearings within a few weeks of an appeal date. While that might seem like a lifetime when you aren’t receiving benefits, it isn’t a lot of time for a lawyer to get prepared for a hearing.

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 Nebraska, Unemployment, Workers' Compensation and tagged .

The good, bad and so-so of workplace law in this year’s session of the Unicameral

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State law impacts the workplace as much if not more than federal law. Nebraska workers gained some protections in the recently adjourned legislative session. Equally important, Nebraska workers didn’t lose any rights or protections in the recently adjourned session.

However, most legislation that would have benefited employees stalled. Nebraska’s low threshold for filibusters and traditional deference to committees makes it difficult to pass legislation without broad support. Most of the proposed legislation that would have affected the workplace lacked that broad support in the legislature.

Nebraska will likely retain its business-friendly litigation climate and middle of the pack ranking in comparative costs of our workers compensation systems (Overall costs of workers’ compensation are declining)

So here is the good and so-so of enacted legislation effecting workplace laws in Nebraska. I will also touch on what didn’t pass and talk about some interim studies that might affect legislation down the road.

The Good

LB 217 introduced by Lincoln Senator Patty Pansing Brooks, would make it illegal for an employer to retaliate against employees for discussing salaries. A few years ago, I would have thought the bill would be unnecessary because the National Lanor Relations Act (NLRA) broadly protected concerted activity in the workplace. But in 2018 the Supreme Court handed down the Epic decision which narrowed the definition of concerted activity under the NLRA. Workers in Nebraska will get back some of those pre-Epic protections.

LB 418 — This law, introduced by Omaha Senator Machaela Cavanaugh would prohibit debt collection of medical bills related to a work injury during the pendency of a workers compensation claim. Nebraska has drawn national media attention for how our laws favor aggressive debt collection. This law protects injured workers.

The law requires injured workers and or their attorneys put in a fair amount of work to comply with the new rule. Employees are required to file a petition to invoke protection of the law, so I would be interested to see if the number of petitions filed in the workers compensation court increases.

The collections bill was also paired with a bill that made it easier for non-resident aliens to receive agreed upon settlement proceeds.

On a side note, Cavanaugh has asked for an interim study by the Business and Labor Committee to study the effectiveness of Nebraska’s anti-discrimination laws

The Bad

The bad news of this legislative session for workers’ in Nebraska is that most legislation that could have helped workers did not get enacted into law. Here are some highlights (or lowlights):

LGBT rights — Legislation to include sexual orientation and gender identity within the Nebraska Fair Employment Practices Act fell well short of the necessary votes to overcome a filibuster.

Omaha’s municipal human rights ordinance prohibits discrimination on gender identity and sexual orientation grounds. Lincoln city council member Jane Raybould hinted at a recent town hall type meeting that Lincoln’s “fairness ordinance” that would include sexual orientation and gender identity within Lincoln’s human rights ordinance might be a ballot question in 2020.

The LGBT community may have some protections from discrimination on the job under a “sex plus”  theory of discrimination which outlaws sex stereotyping.

Employee classification — LB 577 ntroduced by Omaha Senator Tony Vargas would have expanded the power of the Nebraska Department of Labor to shut down worksite suspected of misclasfiying employees as independent contractors. The state loses out on tax revenue through misclassification, while workers miss out on workplace protections like workers compensation and unemployment through being misclassified.

Senator Vargas has also proposed an interim study about workers classification that will bear close scrutiny as it will certainly discuss how to classify gig economy workers and discuss so-called portable benefit laws in Nebraska 

Workers compensation — The legislature shelved legislation that would have clarified when temporary disability ends and permanent disability begins. I’ve blogged extensively about the gap or squeeze that can arise when an injured worker isn’t receiving any types of benefits but can’t work or aren’t allowed to return to work.

The legislature also shelved legislation that would have provided death benefits in workers compensation cases, to workers without dependents.  increased funeral benefits and would have limited expenses charged for medical reports. Likewise the legislature also didn’t pass legislation that would have made it easier for firefighters and other first responders to collect workers’ compensation benefits.

Wage and hour and unemployment — Legislation that would have provided paid leave and prohibited retaliation under Nebraska’s Wage Payment and Collection Act didn’t pass. Legislation limiting mandatory overtime for overburdened corrections workers also did mot pass. Legislation that would have expressly included quitting to take care of a family member as a good cause for a quit. was rejected  Lawmakers also rejected a propsal to increase the minimum wage for tipped employees and to index the state minimum wage for inflation.

The so-so

LB 428 exempted highway constriuction employees on seasonal layoff from job search requirements as a condition of receiving unemployment compensation. I pointed out that while business as a whole likes tough work search requirements as a condition of receiving unemployment, construction employers who have seasonal layoffs don’t like them as it gives employees incnetive to switch jobs.

I believe this was somewhat of a missed opportunity. Like other states with weak rural internet connections, Nebraska’s internet-based system to log job search information with the state is difficult to navigate for rural employees. The legislature needs to fix the mechanism that eligibile workers use to receive their unemployment benefits.

 

 

 

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, Nebraska, Unemployment, Wage and Hour, Workers' Compensation and tagged , , , .

Equifax TALX dirty on unemployment benefits

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Equifax’s handling of unemployment claims is a scandal too.

According to USA Today, thanks to a data breach that effected 143 million Americans, credit reporting company Equifax is the most hated corporation in America.

But if you think the data breach was bad, just wait until you hear what Equifax does with unemployment claims.

In 2012 Equifax acquired TALX (pronounced “talks”) which helps employers process unemployment claims. In 2010, the New York Times did some good reporting about how TALX helped delay and even deny unemployment benefits to unemployed workers during the height of the Great Recession with questionable appeals and other tactics. At that time, TALX processed unemployment claims for employers comprising up to 30 percent of the workforce.

But even as memories of the Great Recession fade from media consciousness, TALX is still up its old tricks as a division of Equifax. The silver lining to the Equifax/TALX dark cloud for newly unemployed is if an employee appeals a denial of unemployment and Equifax/TALX is handling the claim, there is a good chance that Equifax/TALX will not appear for the unemployment appeal hearing.

The mere fact Equifax/TALX no shows a hearing doesn’t automatically mean an employee wins their unemployment appeal in Nebraska. According to 224 NAC 01 014, an employee appealing a determination still must present evidence as to why the determination was incorrect. This is true whether the employee was alleged to have quit or was fired. The quit/fired distinction is important as the employee has the burden to prove they quit for good cause while the employer has the burden of proof to show the they fired the employee for misconduct in connection with employment.

In my experience with uncontested unemployment appeals, the quit/fired distinction is less important than it is in a contested hearing. The problem for many employees though is that they don’t appeal their determination within the 20 day period allowed under Nebraska law. Additionally some employees could avoid an initial denial of benefits if they would better communicate with the Nebraska Department of Labor about their unemployment claim.

Sometimes newly unemployed workers do things to undermine their right to receive unemployment, but I refuse to scapegoat ordinary people when a corporation like Equifax is actively working against unemployed workers pursing unemployment insurance.

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 Nebraska, Unemployment and tagged , .

Four reasons to question the importance of the USDOL gig economy opinion letter

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United States Labor Secretary Alexander Acosta

The United States Department of Labor (DOL) published an opinion letter that would seem to exempt most so-called “gig economy” companies from federal wage and hour enforcement.

This opinion from the Trump DOL is a reversal of guidance from the Obama DOL stating gig economy workers should considered to be employees.

I think the DOL letter on the gig economy is news worthy, but I question its legal impact on the workplace as a whole. Here is why I would downplay the importance of the opinion letter.

Employees can still bring private causes of action for misclassification — While the letter means that the USDOL won’t initiate enforcement for wage and hour violations against companies, employees can still bring claims. Sure, these claims may get forced into arbitration, but employees through collective action have found ways to work around arbitration clauses.

Appellate courts seem to be giving less deference to agency interpretation – Traditionally courts have granted some deference to the opinions of the executive agencies charged with enforcing the relevant law. The Roberts court seems less inclined to do so. That’s not to say the Roberts court would disagree with classifying gig economy workers as independent contracts on the merits. This just means that federal appellate courts would be less likely to defer to the opinion of the Department of Labor on the issue.

The opinion letter doesn’t apply to state laws – While some states may be persuaded by USDOL opinions on classifying gig economy workers in their wage and hour laws, states are not going to be bound by that opinion — or necessarily even federal statutory law.  States also usually have different standards as to is covered by state workers’ compensation laws, state wage and hour laws and unemployment insurance laws.

For example, the Oregon Supreme Court refused to classify a worker as an employee for the purpose of workers’ compensation even though the employe was classified as employees for the purpose of state wage and hour laws. Ohio also refused to use federal law to classify an employee as part of the workforce in order to make them eligible for workers’ compensation benefits.

Opinion letters have much less force than a law – Divided government makes it hard to pass controversial legislation, so interests looking to change the law are stuck trying make changes to the law by lobbying the executive agencies that enforce and interpret those laws. But these favorable opinions don’t have the force of law behind them.

Gig economy companies have also been stymied in state legislatures in their efforts to change employee classfication laws.They are now lobbying state agencies in charge of enforcing and administering state employment laws.  

In short, gig economy companies are basically tinkering around employee protection laws at this point. Employee advocates need to be vigilant about the threats to our practices by the gig economy and its high level and bipartisan advocates.

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 Gig economy, Unemployment, Wage and Hour, Workers Compensation and tagged .

Bill would expand job search exemption for laid off workers receiving unemployment

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Some employers don’t want their laid off employees looking for work

Some unemployed workers could be exempted from job search requirements under the Nebraska Employment Security Act if a bill being considered by the Nebraska legislature passes.

LB 428 introduced by State Senator Curt Friesen, would give the Commissioner of Labor the authority to exempt some workers on highway and street construction jobs from job searches as a condition of receiving unemployment benefits. The bill would expand the exemption from job search requirements for workers on layoffs who have an expectation of returning to work.

Nebraska requires laid off workers to make five job search contacts per week and one contact a day as  a condition for receiving unemployment benefits. Businesses support the reduction in unemployment taxes  brought about by policies such as tough job search requirements. But those job search requirements have had unintended consequences.

In another state with robust job search requirements for unemployed workers, Wisconsin, many employers in the construction industry complained about the job search requirements. They argued that the job search requirements made it harder to retain employees who traditionally collect unemployment benefits while being laid off over the winter.

Requiring workers on a seasonal layoff to look for work gives other employers the chance to “recruit” employees. Construction employers in Nebraska frequently complain of a worker shortage, so employee turnover encouraged by job search requirements would make that problem worse.

If you spend any time reading HR Twitter you know that “talent” recruitment and retention is frequently discussed. Setting aside the obvious solution of increasing wages, HR folks like to talk about creative ways to retain employees. Hence perks like ping pong tables in break rooms and casual dress codes.

Traditionally employers were usually the only way to obtain good health insurance, so workers stay in their  jobs to keep their health insurance even if the working conditions are poor.

There are also more coercive talent “retention” tactics such as non-compete agreements that are being increasingly absued by employers to the point that even some Republicans  are introducing bills to address the issue on a federal level.

In addition to reducing taxes, tough job search requirements are supposed to increase the size of the labor market by discouraging receiving unemployment benefits. But policies that may benefit business interests as a whole, like job search requirements to receive unemployment benefits, may not benefit particular employers who may struggle to hold onto valuable employees.

 

 

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 Nebraska, Unemployment and tagged , , , .

Indefinite suspensions are employer ghosting

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True fact stated: Millennials didn’t invent workplace “ghosting”

Employee “ghosting”, or employees quitting without notice, has been a hot topic among HR “influencers”. This trend seems to be blamed on the usual suspects of millennials and the internet.

But more thoughtful commentators have argued employers bear some of the blame for employee behavior through harsh application of employment at-will. One particularly nasty example of employer “ghosting” is the indefinite suspension.

This form of employer ghosting is well-established enough that the Nebraska Department of Labor presumes that an indefinite, involuntary suspension is a termination for the purpose of an unemployment appeal. As I’ve stated in previous posts, an employee who is terminated should have an easier time in getting unemployment benefits because they employer has to prove the employee was fired for misconduct in connection with work.

Unfortunately, there isn’t a hard and fast rule about how long of a suspension constitutes a termination. I believe it would be prudent to ask how long the suspension is supposed to last. I also think that an employee should check in with their employer about the status of investigation during a suspension. By taking these steps the employee shows that they didn’t intend to end the employment relationship, but that the employers lack of communication forced their hand.

Once an employee has filed for unemployment, the employer is forced to provide a reason and some evidence about if and how the employment relationship came to an end. If the employer doesn’t do this and the employee can show they were let go not to due to misconduct, they employee generally gets unemployment benefits. Unemployment appeal hearings also give employees some opportunity to investigate and question their employer about the reason for their termination. This information can sometimes be helpful in other employment-related cases like workers’ compensation or discrimination claims.

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 Nebraska, Unemployment and tagged , , , , .

The case against “Ghosting” for employees

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Employers are increasingly complaining of employees “ghosting” or leaving suddenly without notice. Temple Law Professor and author Brishen Rogers correctly pointed out on Twitter that employee ghosting is protected the by the 13th Amendment prohibition of slavery. Other commentators have pointed out that employers have been “ghosting” employees for many years and that some turnabout is to be expected as unemployment declines.

Employee “ghosting” is also the flip side of employment at-will. Employers are free to fire you at any time, but you are free to quit your job at any time without notice.

The concept of giving notice before quitting isn’t rooted in any legal requirement. But giving notice before leaving a job can give employees some legal benefits. Providing written notice can provide more protections to employees if done correctly.

Unemployment

In Nebraska, if you quit your job you have to prove you had good cause for the quit to get full unemployment benefits, whereas if you are fired your employer has to prove you committed misconduct in connection with your employment to deny you full benefits. Often when an employee gives two weeks’ notice, an employer will have them stop working before the two week notice period ends. In this situation an employee, for the purposes of unemployment benefits, has been fired. So unless the employer can prove the employee committed some misconduct, then they will receive full unemployment benefits.

Putting notice in writing can be helpful because it explains why you are leaving. Under Nebraska law, there are several reasons deemed by good cause for leaving. Having one of those reasons in a letter could help you receive unemployment benefits sooner.

I recently had an employee who was asked to submit a resignation letter due to alleged concerns about her job performance. My client was smart enough to write down that she would retract her resignation if performance improved. My client ended up winning her unemployment appeal due in part to that letter as it wasn’t clear that she really intended to resign.

Other employment laws

Written notice can also help in other cases. If an employee resigns due to workplace harassment, written notice of a quit would put an employer on notice of the harassment if it wasn’t done so already. Adding in that the resignation would be retracted if the harassment was addressed would also help.

A written notice that an employee is quitting because of a medical condition could prompt an attempt to accommodate that condition under the Americans with Disabilities Act.  I have seen written notice of quits because of medical conditions be helpful in winning benefits in workers’ compensation cases as well.

Giving notice is also helpful to an employee quits a new job for a new job that falls through. Courtesy can help an employee maintain a relationship with an employer and make it easier for an employee to go back to a job.

 

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

This entry was posted in ADA, Harassment, Nebraska, Unemployment, Workers Compensation and tagged , , , , , , .

Immigration, SEC cases send mixed signals from Supreme Court

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Like Justice Stephen Breyer, many of us have pained looks when thinking about the Supreme Court this week

In a case with implications beyond securities law, the Supreme Court ruled in Lucia v. SEC  last week that an investment adviser convicted of securities fraud by the Securities and Exchange Commission (SEC) was unconstitutionally convicted because the Administrative Law Judge (ALJs) who tried his case was hired rather than appointed in violation of the appointments clause

Lucia is not a high-profile case like Tuesday’s decsion in Trump v. Hawaii that upheld the so-called Muslim ban. To some extent the cases may seem contradictary. But the cases can be reconciled in a way that reveals some disturbing truths about the American political system. While Lucia is an important case in its own right, it makes Trump v. Hawaii more understandable.

In January 2017, I wrote about how a companion case to Lucia could potentially wreak havoc with Social Security Disability (SSDI) cases.  Like the SEC, the Social Security Administration appoints administrative law judges to adjudicate social security disability claims. ALJs are government employees who are hired by agency rather than appointed by the President or agency head. The Supreme Court held that since ALJs at the SEC had significant discretion in deciding important matters they were officers for the sake of the appointments clause so they needed to be appointed rather than hired as employees.

SSDI hearings may be distinguishable from SEC hearings in that they are less formal and less adversarial. A parrty challenging the constituionality of SSDI on appointments clause grounds might have a hard time showing they had standing to make a challenge. But other forms of administrative  hearings are more formal and adversarial and involve parties with standing to make challenges.

In Nebraska, the Department of Labor hires ALJs to hear unemployment appeals. In many states, like Iowa, workers’ compensation cases are heard by ALJsthat are hired as civil servants rather than appointed by the Executive. SEC v. Lucia could help employers/insurers to make persuasive appointments clause arguments under state constitutions  that such arrangements are unconstitutional. Employees/plaintiffs have had a recent string of good decisions with state supreme courts challenngng laws they believe harm workers. Employers may decide to press their luck in the states with Lucia case as persuassive authority. The same challenges based on Lucia could conceivably be made about unemployment insurance at a state level.

Finally there was some irony in Lucia. Though ALJs hired by the SEC could only make recommendations to the commission, the court found that the commission usually deferred to the recommendation of the ALJ which was part of the reason why the ALJ was an officer rather than an employee. In Masterpiece Cakeshop an ALJ had decided that bakery had violated Colorado public accommodation laws in refusing to bake a wedding cake for a same-sex marriage. The comments made by the Colorado civil rights commissioner that caused the decision to be reversed by the court were made after the ALJ’s decision.  But in Masterpiece the argument that the commission was probably just deferring to an ALJ decision was absent. But Masterpiece and Lucia can be somewhat reconciled logically as they both show how the Roberts court is skeptical of administrative agencies when they interpret laws and adjudicate disputes.

In his dissent in Lucia, Justice Stephen Breyer stated the Supreme Court threatened to undermine the whole system of administrative adjudication with its decision.  The most high profile of these administrative systems is the Immigration Court which is backlogged with cases. President Trump proposed “solving” the backlog of cases by just doing away with due process altogether in deportation hearings.But if four-flushers and  flim-flam men deserve  due process in administrative hearings, then so do those accused of either entering or living in the United States without authorization.

The skepticism shown by the Roberts court towards admisnisative agencies that regulate the economy was absent the Department of Homeland Security (DHS) and other intelligence agencies in Trump v. Hawaii. Instead the Roberts court was beyond deferential to the Executive branch in a matter they deemed to be “national security.” To those raised during  the Cold War and post-9/11 era such deference to the executive on matters of national security seems natural. But as Justice Sotomayor poitned out in her dissent, the Judiciary, Legislative and Executive are equal branches of the government.

But are the branches of the government are equal when the Executuve commands a massive standing army and massive foreign and domestic intellignece agencies? The power of the Executive in this area is even greater when combined with business interests that former President Dwight Eisenhower described as the military-industrial complex in 1961.  William Jennings Bryan made a similar warning in 1900 in what was called his “Imperalism” speech. The corrosivve effects of the military-industrial complex or empire on our democratic form of government can be seen in how the Roberts court was willing to kow-tow to the Trump administration on matters of “national security” while the corut is more than willing to second guess Congress and administtrative agencies on matters relating to regulation of the economy.

 

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 Constitutional law, social security disability, Unemployment, Workers Compensation and tagged , , , , , .