Category Archives: Workers Compensation

Why I don’t mind my client’s using social media (most of the time)

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The idea of workers’ compensation fraud is embedded in the popular imagination and an evergreen mainstay of local news coverage — and of course social media.

Social media is a new wrinkle on the old chestnut of workers’ compensation fraud. Usually stories go something along the lines of:

“A Florida man who was receiving workers’ compensation benefits for a back injury was arrested after he posted about his “epic workout at Beast Mode Crossfit” where he “maxed out” on his “deadlift at 405” on Facebook.” (FTR Beast Mode Crossfit is a real gym, but it’s in Texas)

There is a lot wrong with this stereotype or trope besides my poor attempts at humor.

First of all employer and medical provider fraud is as prevalent, more costly, but less reported than employee fraud.

Second, injured workers have to go through all sorts of gatekeepers to get benefits such as insurance adjusters, defense lawyers and medical examiners in workers’ compensation case that either actively or passively assume their cases are somehow illegitimate or exaggerated.

But the inconvenient truth for plaintiff’s lawyers is that sometimes injured workers do post things on their social media accounts that hurt their cases.

That’s why some lawyers advise their clients not to have or not use social media accounts during litigation.

I don’t think that is practical or helpful for a lot of reasons.

Job and business opportunities – People find out about jobs through social networks. Those social networks have now moved online. It’s not unusual to see a “My company is hiring” post on Facebook. (There is a whole social network, Linked-In, that is geared towards these posts) If you are off of work and or looking to return to work after recovering from an injury that is the subject for a court case, then Facebook and other social networking sites may be helpful in finding work.

Many people also run home businesses or side businesses. Social media is helpful in promoting those businesses. Traditional want-ads have largely moved to social media as well.  Sometimes injury victims will need to sell possessions to get by while a court case is pending.

Social connections – People with serious injuries are often unable to work for a period of time, so they lose the social connections of work. They tend to get lonely and unhappy. These unhappiness compounds the physical pain of an injury and anxiety over a court case.  Social media is a way to maintain  social connections and connect to people you don’t know in real life (IRL), but may share common interests. Those social media connections can be particularly important for people who may have relocated from another part of the country or immigrated from another country and may not know many people locally.

News and Entertainment – I read something on Twitter where some hipster-type tweeted they needed a show for background noise while they were on their phone. The combination of smart phones (a dated term) and social media means that people find entertainment by accessing social networks on their phone. Cable televisions and even streaming services cost money. But so long as you have phone service, you have a source of entertainment. Social media is also a free news source whereas news sources that require a subscription may be beyond the financial means of an accident or injury victim.

Social media may have been extraneous 10 years ago. In 2009, it wouldn’t be unreasonable to tell someone “Don’t go on Facebook while your case is open.” Many clients might not have even had an account.

But as a lawyer in 2019, if you tell a client not to use social media, you are telling them something like, “I don’t want you to interact with your friends, talk about sports, television shows, politics. I don’t want you sharing jokes, trying to run a home business or use a free service that could help you find work. I’m telling you this because there is a small chance you could ruin your case (and my fee) if you post something dumb.”

I still think lawyers should advise their clients about social media use. I don’t think there is anything unwise or unethical about advising clients to adjust privacy settings. I advise my clients to be careful on socail media I also think it’s smart to advise clients not use social media during a trial or deposition.

But I believe it’s impractical to tell clients not to use social media while they are involved in a claim or litigation.

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.

This entry was posted in personal injury, social media, Workers Compensation and tagged .

Will worker-friendly prosecutors be stymied by the 8th Amendment?

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Newly elected Queens County NY District Attorney Tiffany Caban vows to crackdown on wage theft

Newly elected Queens County District Attorney Tiffany Caban vowed to step up criminal enforcement  of wage theft.  But prosecutors wanting to use the criminal justice system to push for workplace justice may be blocked by arguments adopted by the Colorado Supreme Court recently.

The Colorado Supreme Court held that a $841,200 fine to an employer for not having workers’ compensation insurance violated the excessive fines clause of the 8th Amendment. Colorado imposes a fine of between $250-$500 per day for every day an employer does not have workers’ compensation insurance.

The Colorado court found lower courts erred as a matter of law in not applying Supreme Court precedent stating that fines could be challenged if they were clearly excessive. The Colorado court found that there was an insufficient record to determine whether the fine actually was clearly excessive and sent the case back to the trial court for a factual determination.

While not controlling in other states or jurisdictions, the Colorado decision would likely be persuasive in jurisdictions, such as Nebraska, that impose daily fines on employers for not having workers compensation insurance.

But even if Nebraska did adopt the Colorado fine decision, I question somewhat the practical effect of the decision. Employers are rarely fined for not having coverage. Colorado employers still bear the burden of contesting their fine on a violation by violation or day by day basis. But this would also place a burden on prosecutors to prove violations on a day by day or violation basis. I believe this would discourage prosecution under Nebraska’s law as Nebraska law vests sole authority to prosecute fine cases to the Attorney General. The law also give doesn’t make prosecution mandatory.

My view is that the Colorado decision would be less persuasive in challenging penalties and fees awarded to employees under Neb. Rev. Stat. 48-125.

The Supreme Court has held that while civil fines are still fines under the 8th Amendment, fines do not include punitive damage awards in civil cases. Fines are limited to money paid to or taken by the government.

Neb. Rev. Stat. 48-125 awards penalties and attorney fees to employees where there is no reasonable controversy of fact or law as to an award of medical or disability benefits. No reasonable controversy is a difficult standard for an employee to meet. Penalties and fees under 48-125 serve as a substitute for a bad faith action in Nebraska.

Since penalties and fees are awarded directly to parties and they serve as a substitute for damages that could be awarded in a civil case, there is a good argument that penalty and fee awards under 48-125 would be immune from an 8th Amendment challenge.

On the flip side, since Nebraska doesn’t allow for punitive damages in civil cases, a narrow reading of Supreme Court precedent on fines might open up an 8th Amendment challenge. The fact that Nebraska doesn’t allow for punitive damages would give Nebraska employers a stronger argument to challenge an award of penalties and or fees under 48-125 as excessive.

Previously I wrote about how employee benefit plans under ERISA can complicate the resolution of workers compensation claims.   Employees have  the ability to have a court fine an insurance plan for not providing a copy of the benefit plan. This leverage may be lessened if more courts adopt the reasoning of the Colorado Supreme Court about fines.

Lawyers for injured workers should be proud of the success we have had making constitutional challenges to anti-worker changes to state workers’ compensation laws. But last year I wrote that the defense bar could also mount constitutional challenges of their own. They succeeded in Colorado. Hopefully legislators in Colorado will fix a decision that makes it harder to punish deadbeat employers who don’t provide workers compensation insurance to their employees.

One way to make fines pass constitutional muster would be to allow injured workers to share in the fine. This would probably mean changing fine statutes to allow for private prosecution, but if it was coupled with what amounts to a bounty it could mean more aggressive prosecution employers who didn’t get workers’ compensation insurance. In states like Nebraska, that don’t allow for punitive damages, I also think an award of a set general damage to a plaintiff where the employer didn’t have insurance would help penalize scofflaw employers.

On Monday, I wrote about my reluctance to criminalize workers’ compensation fraud. Allowing employees expanded civil remedies against employers who don’t carry insurance may be more effective in combating this form of workers’ compensation fraud. It may also be more permissible from a constitutional perspective.

But from a practical standpoint I am well aware of the leverage that criminal prosecution gives to an employee-side attorney in a wage and hour case. I represented an employee who was paid nothing for several weeks of sales work, Nebraska doesn’t have a so-called outside sales exception, so the emplyoer had no defense to not paying my client. Furthermore, Nebreska has tough language in our wage and hour act stating that county attorneys shall prosecute violations of the law. I hope newly elected pro-workers prosecutors will be willing to partner with civil attorneys in cracking down on wage theft.

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.

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

Beware of criminalizing workers’ compensation

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The idea of harshly punishing white collar criminals is one of the few ideas that is popular across most of the political spectrum.

So in spite of the headline “Restoring the Death Penalty and other Reasonable Solutions to Workers’ Compensation Fraud”, I found myself agreeing with Robert Wilson’s post about increasing the criminal penalties for some forms of workers’ compensation fraud.

I had a good first reaction to Wilson’s post because he focused on the mild punishment for offenders who conspired with others to commit millions in fraudulent billing in California. (In Florida, medical billing fraud can get you elected Governor and United States senator, but I digress)

I give Wilson credit for focusing his recent discussion of workers’ compensation fraud on medical providers rather than on claimants. But then, I had some second thoughts.

First many doctors are reluctant to get involved in workers’ compensation cases. Adding harsh criminal penalties for doctors involved in workers’ compensation would discourage doctors from helping injured workers.

More importantly, who would be most vulnerable in a criminal crackdown on workers’ compensation fraud? It would be injured workers. Claiming workers’ compensation benefits is stigmatized for many reasons and almost assumed to per se fraudulent by many.  Enhanced criminal penalties for workers’ compensation fraud would have to be done through legislation. Who has more political clout, doctors or injured workers’ making $12 per hour?

Wilson’s post made mention of a “woke” prosecutor in southern California who was willing to prosecute white-collar crime. “Woke” law enforcement is not common. Enhanced enforcement of workers’ compensation fraud by claimants would disproportionately impact working class wage earners. My guess is that would disproportionately impact lower income people of color who are more likely to work in labor jobs with high injury rates.

So should insurance companies just be allowed to get ripped off by crooked providers? As I thought more about Wilson’s post, I wondered why insurance companies couldn’t just sue crooked providers under Civil RICO. Civil RICO allows for treble damages for civil conspiracies as well as other damages. It can be a powerful civil tool againt fraud.

I beleive here are a few reasons why insurance companies would want to go the criminal route rather than the Civil RICO route in combating provider fraud. First of all, appellate courts have made it difficult to bring a Civil RICO case. When I say difficult,  I mean cases routinely get tossed on the pleadings before discovery. The enervation of Civil RICO is connected to the enervation of anti-trust law that has allowed for Gilded Age levels of corporate consolidation.

Also, the insurance and claims industry likes to conspire, er I mean, collaborate with friendly medical providers themselves. Injured workers sucessfully brought Civil RICO claims in Michigan and Colorado alleging employers and claims managers have conspired with medical providers to undercut the value of their workers’ compensation claims.

In short, I believe the solution to workers’ compensation provider fraud is a robust civil justice system. Looking to the criminal justice system to root out workers’ compensation fraud will likely just lead to injured workers’ being targeted for criminal penalties.

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.

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

Guest Post:It’s time to overcome the negative stigma of workers’ compensation

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This is a guest post from our colleague Mack Babcock from Denver. We like the post because it directly the addresses the issue of the stigma of workers’ compensation. We have addressed that stigma indirectly in two recent posts (here and here), but we haven’t addressed the issue directly.

Both workers’ compensation claimants and attorneys know what a complicated, stressful mess a workers’ compensation claim can be

In the event of a workplace accident, workers’ compensation is intended to cover an injured worker’s medical expenses, lost wages, and any permanent disability. Even when filing a workers’ compensation claim is well within an injured party’s rights, they often face a difficulty they might not have expected: stigma.

A 2014 survey by Summit Pharmacy, Inc. found that more than a third (37%) of Americans believe individuals who claim workers’ compensation are using it as an excuse to get out of work.

Clearly, there’s a lot of misinformation and misunderstanding out there about what workers’ compensation is and when it applies. Even though workers’ compensation is a type of insurance — no different than car insurance or medical insurance — some people regard it as a welfare program for those who don’t want to work.

Stress and anxiety are already common among those injured at work, and the last thing they need is to worry more about how others might perceive them. It’s important for both employers and employees to understand that the primary goal of the workers’ compensation system is to provide basic protection to the injured worker, allowing them to recover faster and become a productive member of society once again.

In most cases, denying a claim simply shifts the burden of recovery to the injured worker, and prolongs the amount of time it takes for that person to return to the workplace.

Employers

Some employers dislike the workers’ compensation insurance requirement for various reasons, including financial complaints. They may feel they will be asked to pay for injuries that aren’t serious, injuries caused outside of work or by a pre-existing condition, or injuries that are the result of the carelessness of the individual seeking benefits. In reality, cases of people “gaming” the system are rare — despite the pervasive negative stigma that this is the norm.

In addition, workers often fear reprisal from their employer for filing a workers’ compensation claim. What they don’t realize is that most states have enacted varying degrees of protection for workers to prevent them from being fired for filing a claim.

Take Colorado, for instance.

If you’ve been injured on the job in an “at will” employment state like Colorado, it’s technically legal for an employer to fire you during the process of a workers’ compensation claim. However, employers are NOT legally able to fire employees out of retaliation because of the claim. They must present valid reasons for the termination. (Editors’ Note: This is true in Nebraska was as well)

Co-Workers

Another source of the negative stigma surrounding workers’ compensation is co-workers.

Other employees, perhaps influenced by their supervisor’s attitude, may feel jealous of an injured co-worker who is receiving pay and benefits without having to come to work. They may feel as though the injured worker is getting away with something. Why should they work hard for their paycheck while the so-called injured person stays home and gets paid for doing nothing?

Other co-workers may even feel resentful, believing the injured person could work at a lesser pace or easier job rather than take advantage of a program for which others must pay.

Unfortunately, many injured workers are reluctant to file for workers’ compensation benefits because they feel embarrassed and ashamed. They wonder what their co-workers might think.

Self-Criticism

Lastly, not only can the criticism of employers and co-workers make a claimant hesitate to file for workers’ compensation, but the injured person may have to overcome their own sense of pride. It’s important to understand that workers’ compensation isn’t charity or welfare, but a legitimate insurance program that’s meant to be used if needed.

If you don’t feel bad about using your auto insurance to pay for vehicle repairs after a crash or medical insurance to help pay for an annual physical, then you shouldn’t feel bad about utilizing workers’ compensation insurance.

It’s okay to ask for help when you need it.

Don’t Be Afraid to Consult a Workers’ Compensation Attorney

We think it’s past time people overcome the stigma associated with workers’ compensation.

If you or a loved one have been injured at work, you should know there’s nothing wrong or shameful about filing for workers’ compensation benefits. There’s nothing to be embarrassed about. Plenty of people with long and successful careers file workers’ compensation claims. Workers’ compensation is an important tool for injured individuals seeking recovery and who want to become a productive member of society again as soon as possible.

While we can’t change the minds of 1 in 3 Americans, we do understand what you’re going through and we can help you navigate the process swiftly and easily. Don’t let the false stigma and stereotype of workers’ compensation deter you from pursuing the benefits you rightfully deserve.

Take the first step today by contacting an experienced workers’ compensation attorney to talk about your case.

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

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

Upon further review: 2nd thoughts on the AMA 2nd

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Back in October, I wrote a critical post about the American Medical Association Guide to Causation of Injuries, 2nd edition. (AMA 2nd for short) But as I revised that post to submit as a more formal article, I realized some of my criticisms of the AMA 2nd were misplaced.

I still believe the AMA 2nd will be used by the defense bar to informally heighten causation standards. Other bloggers have made similar observations about the use of the AMA 2nd.

I still believe the AMA 2nd will be used in lobbying efforts by the insurance industry.

But after reviewing the AMA 2nd in more detail, I think the danger of the AMA 2nd is in the misuse rather than the use of the AMA Guides.

I came to my conclusion after reviewing materials written about the AMA 2nd by J. Mark Melhorn, MD who is one of the primary authors of the AMA 2nd.

The AMA 2nd gives doctors guidance on how to determine causation for a work injury. How the AMA 2nd differs from a traditional differential diagnosis is that the Guides ask doctors to consider statistical studies concerning causation – or epidemiology – as to whether a condition is work-related. I think it is important to note that the AMA 2nd still requires a doctor to consider work duties and other factors specific to the injured worker in determining whether an injury is work-related or not. The authors of the AMA 2nd is clear about the limits of epidemiology. The authors of the AMA Causation Guides are also clear that medical causation and legal causation are different concepts.

Because of how the AMA Guides to Permanent Impairment, 6th edition (AMA 6th) for short, have hurt injured workers, I like most plaintiff’s lawyers have a visceral reaction to anything document that includes “AMA Guide” in the title. But if I am faced with a medical report or doctor stating that my client’s work duties could not have caused his or her injuries citing to the AMA 2nd, the AMA 2nd is likely being misinterpreted.

The term “evidence-based medicine” is another trigger for plaintiff’s attorneys. Evidence-based medicine is synonymous with the use of statistical research. While the defense bar seems to have marshalled the mystique of math to their advantage, a lot of time the numbers can work for employees. Plaintiffs can cite to favorable studies linking repetitive or overuse to musulo-skeletal conditions.

Epidemiology can also be helpful to workers in other ways. In cases litigated under the ADA employers will justify discrimination based on disability under the theory that a disability or medical condition can pose a direct threat to the safety or health of others. Epidemiology can help an employee prove their medical condition poses little or no risk to their safety or the safety of others. In my experience, this is particularly true if this research is shared with specialists who have treated the individual in the past.

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.

This entry was posted in employment law, Nebraska, Workers Compensation and tagged , , .

Violating wage and hour law to get out of paying workers’ compensation

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Violating wage and hour law can be a defense  to paying workers’ compensation – at least in Oregon. That wasn’t the formal holding of a recent Oregon Supreme Court decision involving a truck driver hurt during a driving test, but it’s the practical effect of the decision.

Thomas Robinson summarizes almost every state appellate court decision on workers’ compensation on his blog. A few weeks he posted: “Oregon Supreme Court: Minimum Wage Law May Not Be Used to Determine Claimant’s Status as Worker.”

My first reaction was, “Not a big deal. There are different standards, even within states, about coverage for wage and hour laws and workers’ compensation laws.

But then I read the post.

In the Oregon case, a professional driver was making a delivery for the company as part of a mandatory driving test. The delivery benefited the company, but the test drive was unpaid. The employee injured himself unhooking the trailer. He wasn’t hired by the company.

The question in the Oregon case was whether the worker was an employee for the purposes of workers’ compensation. More precisely the question was whether there was a contract of hire. The trial court decided that since for purposes of Oregon’s minimum wage law the employee should have been paid for the driving test, that there was an implied contract for the purposes of workers compensation. But the Oregon Supreme Court found that didn’t matter for the purposes of workers’ compensation because they couldn’t establish the existence of a contract of hire because they employee knew he was not going to get paid for the driving test, so there was not an expectation of payment, so there was no contract for hire.

This decision is terrible for many reasons. First of all, new employees are more vulnerable to injury. Truckers are also at higher risk for injury. Finally, the decision seems to tell employers that in some circumstances violating wage laws is a defense to a workers’ compensation claim.

Maybe a driving test is a close issue when it comes to wage and hour law. But I represented   one former employee in a wage and hour case who worked for several weeks without being paid. If that person had hurt themselves at work, under the reasoning of the Oregon decision, that person would not have received workers’ compensation benefits.

Employers have a strong economic incentive to violate wage laws for driving tests. In this case the employers’ potential damages under wage and hour law would be minimal – even with liquidated damages and attorney fees. That’s assuming an employee would even bring a charge. A workers’ compensation claim could cost an employer  tens of thousands of dollars in medical bills alone.

As a plaintiff’s lawyer I clearly don’t like the outcome of this decision. But some on the defense/insurance side might say that it is up to the legislative branch to fix a bad decision. Maybe, but  it’s a canon of legal interpretation that statues of covering similar areas need to construed in harmony with each other.

The precise term for this concept is in pari materia. Workers’ compensation and wage laws both regulate working conditions and the relationship between employee and employer. They should be construed together to effectuate the purpose s of each act. Holding that violating wage and hour laws can be a defense to paying workers’ compensation seems to inconsistently interpret those two laws. In pari materia is particularly important when dealing with overlap between workers’ compensation and wage and hour issues as these laws were enacted at different times.

In Nebraska, workers’ compensation laws are supposed to be liberally construed to effectuate the beneficent purpose of the act. Put another way, in a close legal case about coverage of the act, a court should find a worker to be covered. In Nebraska, contractual interpretation is a question of law. So again, in a close legal question about the existence of a contract of hire, the law should be interpreted in favor of the worker in finding the  existence of a contract of hire.

Despite all of the legal thumbs on the scale for an employee on the issue of employment in a workers’ compensation case, I am not sure how a Nebraska court would rule in a case involving an injury during an unpaid driving test. Nebraska courts have previously held than an employee injured during a pre-employment physical examination after a conditional offer of employment was not covered by workers’ compensation. The pre-employment physical exam injury case seemed  to rely on the proposition of law that a clear contractual relationship must exist before the workers’ compensation act is applicable.

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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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 & 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.

This entry was posted in Gig economy, Unemployment, Wage and Hour, Workers Compensation and tagged .

Rehm Bennett Moore Rehm and Ockander lawyers organizing and speaking at local and regional seminars

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Rehm Bennett Moore Rehm and Ockander lawyers have helped organize and speak at several recent and upcoming seminars about workers’ compensation.

Rod Rehm is co-chairing the Nebraska Association of Trial Attorneys “ERISA Subrogation, Health Care, Long Term Disability and Other ERISA Benefits Workshop ” on Friday May 3rd in Lincoln. Knowledge of this area of the law helps attorneys to maximize financial recovery for workers’ compensation and personal injury clients.

The seminar features ERISA experts Eric Buchanan and David Abney. Rod met Mr. Buchanan and Mr, Abney at a seminar through WILG, the Workers Injury Law and Advocacy Group (WILG) and recruited them to present to NATA.

Speaking of WILG, Rod presented at the WILG Midwestern Conference on April 29th in Kansas City. His seminar topic is “Lessons from 40 years in the trenches”. Rod also helped organize the conference. Besides the formal seminar, the WILG regional conference was a great opportunity for lawyers who represent injured workers to learn from each other informally. Jon Rehm also attended the seminar.

Brody Ockander recently presented at the recent Baylor Evnen client conference. Brody was part of a panel of plaintiff’s attorneys who presented to insurance and human resources personnel about the plaintiff’s perspective on workers’ compensation. The fact that Brody was invited to the panel shows the regard in which he is held by opposing counsel.

In case you missed it last month, Todd Bennett was inducted into the College of Workers’ Compensation Lawyers. Todd joins Rod as the only plaintiff’s lawyer members of the College from Nebraska,

Our firm is proud of our role in educating lawyers and non-lawyers about workers’ compensation laws and practice. Our firm is also grateful that we have been given the opportunity to share our knowledge abut workers’ compensation.

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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