Category Archives: Wage and Hour

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 , , , .

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 .

Why Lincoln and Omaha probably won’t be following NYC in a minimum wage for Uber and Lyft drivers

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Lyft and Uber drivers in Lincoln don’t have the same legal protections as drivers in New York City

New York City recently implemented a $17 per hour minimum wage for drivers for riding hailing apps like Uber and Lyft. I wouldn’t expect similar measures exapnding wage and hour and/or workers’ compensation to gig economy workers in Omaha or Lincoln for two main reasons.

Local governments in Nebraska have their powers limited by the state

The first hurdle to a city minimum wage or city workers’ comepnsation laws in Lincoln or Omaha is the state constitution. Nebraska courts have held that only the state can regulate the employee-employer relationship unless the legislature authorizes a city or county to do so. The state has authorized cities and counties to draft civil rights ordinances.  Omaha and Lincoln have human rights commissions similar to the Nebraska Equal Opportunity Commission.

But the Legislature has not authorized local governments to implement their own minimum wage or workers’ compensation laws. No such legislation was introduced to that effect this year in Nebraska. In neighboring Missouri, the Missouri legislature reversed an attempt by the City of St. Louis to increase the minimum wage in that city above the state minimum wage. In short, I believe it would be unlikely that Nebraska would authorize local governments to implement their own workers’ compensation and wage laws in the near future.

Even if cities in Nebraska could enact wage and hour and workers’ compensation ordinances, it seems unlikely that cities would do so to cover gig economy workers.

There doesn’t appear to much political will among cities in Nebraska – even in Democratic-controlled Lincoln – to expand employee protections to ride hailing drivers. In fact, the Lincoln City council voted in 2017 to exempt Uber and Lyft drivers from the same licensing requirements as taxi drivers.

In fairness, Lincoln had a long history of being poorly served by a taxi cab monopoly. Complaints about regulatory fairness from former monopolists fell on deaf ears. But Lincoln’s taxi monopoly was broken in 2012 before the rise of ride hailing apps. Lincoln and Omaha lack an organized voice for drivers like they have in New York City. Without such a voice, worker classification issues among urban professional drivers will likely continue to be unheard at a state and local level in Nebraska.

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

Denied workers’ compensation and health insurance for a work injury? You might have a counter

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Ohio State lines up to run a QB counter against Nebraska

My colleagues Paul McAndrew from Iowa and Bernard Nomberg from Alabama have blogged about the tragic but common situation of an employee who puts a work injury on private health insurance only to have health insurance deny payment because they discover the injury is work-related.

It is another example of injured workers getting squeezed. But in the right circumstances an injured worker can squeeze back— a counter-squeeze if you will.

In Nebraska health insurance benefits are considered wages. Nebraska allows employees to receive attorney fees when they sue for unpaid wages under what is called the Nebraska Wage Payment and Collection Act.  So an employer who is denying medical benefits under workers’ compensation, should not be able to deny payment of those bills under private health insurance.

Nebraska also prohibits employers from retaliating against employees for claiming workers’ compensation benefits. Retaliation is an adverse action related to the terms and conditions of employment. Denying payment of wages, in the form of health insurance, because the employee has filed a workers’ compensation claim should be retaliation.

So employers denying workers’ compensation and health insurance benefits can find themselves facing a wage and hour and retaliation case.  Of course, these types of cases are a lot more complicated than described in the last two paragraphs.

In order for the counter-squeeze to work, it is best to have an employer who is at a minimum self-insured for the purposes of health insurance and ideally self-insured for health insurance and workers’ compensation. Tyson, Crete Carrier and Werner Enterprises are large Nebraska employers who fit into the latter category. Self-insurance is important because it allows the employee to link the decision to deny benefits to the employer. In theory you can still make a counter-squeeze work when outside insurance companies are involved, but that turns the case into a civil conspiracy case that can be more costly and difficult to prove.

Wage and hour cases also require detailed proof of medical bills and existence of a valid contract for payment of benefits. If an employee appears to have misrepresented how an injury happened, an employer may be able to fire an employee regardless of any retaliatory motive on their part. But the employee who at first blush may have “screwed up their case” by paying for their workers’ compensation injury with their private health insurance, may be able to salvage a good outcome in their work injury case.

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, retaliation, Wage and Hour, Workers Compensation and tagged , , , .

A truly Epic failure for workers

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He just turned 50 last year…

Free speech in the workplace has been discussed heatedly in the wake of the cancellation of “Roseanne”and a new rule prohibiting NFL players from kneeling during the national anthem. Parties on both sides in the culutrue war have argued that employees don’t have freedom of the speech on the job. While that is generally true, the National Labor Relations Act gives employees some rights of speech and associationon the job. But a recent Supreme Court case could have paired back those rights.

In Epic Systems v. Lewis the United States Supreme court held in a 5-4 decision that neither the National Labor Relations Act  nor the savings clause of the Federal Arbitration Act  prevents enforcement of arbitration clauses that preclude class or collective actions against employers by their employees.

As many commentators and the dissent pointed out, the Epic decision will make it more difficult for workers to band together to address wage and hour violations. Individually, even with attorney fees available, it is not economical for employees to pursue individual cases of wage theft if those individual cases amount to a relatively small amount. An example of such a case were the so-called “donning and doffing” cases pursued against various meat packing plants in the Midwest.

Employers have won some major victories in the area of wage and hour law this Supreme Court term. Epic follows on the heels of a decision making it easier for employers to prove they are exempt from the overtime provisions of the Fair Labor Standards Act

But Epic could impact labor and employment law beyond just wage and hour law. Here are a few ways Epic could impact more than just wage and hour law. This list is not inclusive and Epic is probably worth more discussion, but I wanted to discuss the broader implications of this case and bring up lesser discussed but important implications of this case.

What is a protected concerted activity?

The National Labor Relations Act protects protected concerted activity for the mutual aid of co-workers that goes to the terms and conditions of employment. The employees argued that participating in a collective action case under the Fair Labor Standards Act. Justice Neil Gorsuch, writing for the five Justice majority, disagreed. Gorsuch wrote that the NLRA only covered activities that employees do for themselves, not class action litigation. What concerned me more, was Gorsuch’s  use of a “canon”of statutory construction to hold that seemingly broad language in the NLRA about it employees being able to engage in collective activity for “mutual aid and protection” only applied to forming labor unions and other activities related to formal collective bargaining.

This conclusion concerned me because I have long advocated for non-unionized employees to engage in collective self-help on the job to address issues like bullying  or even accommodation of a disability.  But, as the dissent points out, association rights on the job are also protected by the Norris-LaGuardia Act (NLGA) NLGA expressly provides for a right to self-organization among employees. Though the Epic court rejected NLGA as a basis for overcoming an arbitration clause, it’s broader language could still be the basis for workplace speech and assocation rights than a paired down NLRA.

That Norris-LaGuardia would serve as backstop for employee association rights would assume the Roberts/Gorsuch court is merely following some rules of statutory construction rather than imposing their own economic preferences into the law. That might not be a fair assumption. The Federal Arbitration Act explicitly excludes employment contracts from coverage. In 2001, the Supreme Court limited that exclusion from workers in the transportation industry.  Epic would appear to further limit that exclusion in contradiction to plain and clear statutory language to the contrary.

 

Can Epic be made to benefit workers?

Epic may benefit some employees. One impetus behind using arbitration clauses to prevent class action claims is to defeat class action claims on retirement plans under ERISA. However ERISA also governs short-term and long- term disability policies. Currently, short-term and  long-term disability policies very difficult to win because courts defer to insurers on how the plans are interpreted. Some employee-benefit attorneys believe that employees will have a better chance of disability claims in arbitration.  Union-side labor lawyer, Moshe Marvit has also speculated that Epic might make it easier for employees to form unions.

Many management-side attorneys are also skeptical of arbitration  which could also prevent employers from adopting arbitration clauses.

Constitutional perspectives

So how is it that the Supreme Court can ignore seemingly plain language about the Federal Arbitration Act not applying to employment disputes? The Circuit City decision from 2001, provides one clue. In Circuit City the Supreme Court used a narrow interpretation of interstate commerce to hold that the FAA only applies to transportation employees. This holding is consistent with other holdings from the Rehnquist and Roberts courts that limit that power of the federal government to regulate through the commerce clause. (12)

Though Epic doesn’t discuss state police powers under the 10th Amendment much of the case law relied upon in Epic has to do with how the FAA pre-empts state laws preventing arbitration in certain cases. Essentially the so-called “contracts clause” which prevents laws that impair the obligation of contract.  This includes state laws enacted under 10th Amendment police powers. The Supreme Court took up a contracts clause case, Sveen v. Melin, this term.  That case could also have implications in the world of employment law depending on the language of the decision and any possible concurring opinions from the likes of Justices Gorsuch, Alito or Thomas.

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 Arbitration, NLGA, NLRA, Supreme Court, Wage and Hour and tagged , , , , .