Update: Nebraska placed on NYC-area COVID quarantine list

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This is an update of a post published on July 6, 2020

Americans can live and work where they want within the United States. But as I wrote last year, they aren’t free to claim workers’ compensation where they want. But true to form, COVID-19 has added another complication to this constitutional conundrum.

New York, New Jersey and Connecticut announced fines for residents who did not quarantine for 14 days after travelling to states with rising COVID-19 cases. New York, New Jersey and Connecticut added Nebraska to the quarantine list on July 21st.

The City of Chicago implemented a similar quarantine policy, but have not added Nebraska to their list of states.

In short, injured workers in those states face a 14-day quarantine if they forced to travel to Nebraska for their workers’ compensation case. The new quarantine will impact truckers who live in those states who got hurt working for Nebraska-based Crete Carrier and Werner.

A rock and a hard place for injured workers

I sympathize with and share the public health concerns of my friends and colleagues in New York, New Jersey, Connecticut and Illinois. But if COVID cases continue to increase and or more states start imposing quarantines, more injured workers are going be facing the prospect of a quarantine if they travel out of state for their workers’ compensation cases.

As enhanced unemployment benefits expire this month, a worker under quarantine faces a lot of uncertainty over income. This is especially true for an injured workers who may have already been facing financial hardship before the pandemic. Quarantines may give employers/defendants more leverage in settlement negotiations as well.

Alternatives to interstate travel?

Are there alternatives to in-person workers’ compensation hearings? Per Neb. Rev. Stat. 48-177, in Nebraska parties can agree to video hearings. But there is no way for a Judge to force a video hearing. Many lawyers and judges seem to prefer in person hearings when they need to weigh the credibility of witness testimony. Many workers’ compensation trials have the injured worker as the sole witness. But the credibility of the medical records submitted into the records often relies on the credibility of the witness.

Before trial, employers will often depose or question injured workers. Courts have more power to force video or telephonic depositions. So an out of state worker is more likely to avoid a trip back to Nebraska for a deposition. But I have had out of state clients compelled to travel to Nebraska for depositions.

Travel within Nebraska

In the wake of the COVID-19 pandemic, I have seen more efforts to move depositions from central and western Nebraska to Lincoln. Within Nebraska, employers have less power to compel an injured worker to travel long distances for trial or deposition. At the IRS mileage rate, the cost of driving across Nebraska can equal the cost of air travel to a regional air hub like Denver or Chicago.

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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When is a cut not just a cut?

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Most people will cut accidentally cut themselves doing chores around the house. But a cut on the job can lead to serious consequences for many workers. So when is a cut not just a cut?

Industrial amputations and crush injuries

Workers in meatpacking and manufacturing frequently suffer serious cuts and amputations from blades and crush injuries. From a legal perspective, employers often accept initial responsibility for these injuries under workers’ compensation.

But even if the employer accepts responsibility for paying workers compensation, the employer may attempt to blame the employee for the injury. This means employers will pay medical bills related to a cut or amputation,  but will fire the employee for some safety violation. Employers will often deny paying temporary disability benefits to an employee they accuse of violating safety rules.

Safety violations and retaliation

Employers can argue employee safety violations as a defense to paying workers’ compensation benefits. I will concede that sometimes employees violate safety rules. But other times, employers fire employees on flimsy pretext of a safety violation. Employees may be able to bring a retaliation case in that circumstance.

But, Nebraska workers’ compensation law might also provide some additional remedies for an employee fired for a bogus safety violation. Nebraska workers’ compensation law awards a 50 percent penalty and attorney fees if there is no reasonable controversy about entitlement to benefits. No reasonable controversy is a difficult standard for an employee to meet. But a flimsy termination related to a work injury used to deny benefits  is one circumstance where fees and penalties may be likely.

Moisture,  infection and amputation

But even less serious cuts can present complications. The complication I see the most is moisture. Workers in packinghouses often work in wet environments. This moisture can infect cuts and lead to amputations.

Moisture can also present other issues. For example, a food service employee required to wear gloves during their work would sweat under the gloves. That sweat would increase the risk of infection of a cut and could lead to an employee missing work.

Side effects of medication

Medications can reduce the risk of infection for a serious cut. But medications have side effects that can sometimes require medical treatment. In a recent Virginia case, a bowel disorder caused by medication prescribed to prevent infection was an injury covered by workers compensation. The Virginia decision relied on the so-called “compensable consequences” doctrine. Nebraska recognizes the “compensable consequences” doctrine and will pay benefits related to adverse side effects of medication.

But workers’ compensation insurers often balk at covering infections from cuts and side effects of taking medication from work injuries. Cut, crush and amputation injuries aren’t the only injures that involve compensable consequences. However, proving these consequences is easier in cut and crush cases because of the obvious nature of the injury and how it was caused.

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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Did the Supreme Court undercut ADA protections for employees of religious hospitals?

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Last week the Supreme Court decided that two teachers working at Catholic schools could not sue their employer for discrimination because of the “ministerial exception” to federal workplace discrimination laws.

The Supreme Court clarified (or broadened) what kind of religious school employees are excluded from anti-discrimination laws. The Supreme Court held that the First Amendment’s Religion clause precluded courts from second guessing the reasons for firing ministerial employees. The court held there was no formula for who was a ministerial employee. The court stated that depended on the extent an employee conveyed the message of the church and carried its mission.

Arguably, the Morrissey-Berru decision and the Hosanna-Tabor decision which it relied on only apply to religious school teachers. Before these decisions, lower courts held that most religious school teachers were covered under federal civil rights laws. (See the dissent from Justice Sotomayor starting at page 37 of the opinion.)

Who else will be excluded from civil rights laws?

So, if churches have broader latitude to discriminate against employees, how broad is that latitude. Would this apply to nurses and nurses aides at hospitals affiliated with a church? Nurses and nurse’s aides are often injured at work. Because of this fact, they often need to invoke the Americans with Disabilities Act (ADA) and Family Medical Leave Act. (FMLA) Would a religious hospital argue the ministerial exception to argue the ADA and FMLA did not apply to a nurse or nurse’s aide hurt at work?

So far, at least in Nebraska and the Eighth Circuit I haven’t seen any cases where that happened. But Catholic Health Initiatives (CHI), a major health care employer locally, has some expressly religious statements in its mission statement. Would that language be enough to argue ministerial exception? Maybe not, but religious freedom advocates have advised employers about steps they can take to invoke the ministerial exception defense.

Another commonality between Morrisey-Berru and Hosanna-Tabor

I believe that major church-affiliated health care employers will continue to follow the ADA and FMLA. Major employers and their HR departments tend to be risk-averse. But in litigated cases, I believe outside counsel would push ministerial exception arguments.

Both the Hosanna-Tabor and Morrisey-Berru cases involved ADA claims. This fact fails to surprise me and I doubt that it’s entirely coincidental. From a practical perspective, ADA claims tend to be better cases for employees than other civil rights cases. I believe this is so because employers are more likely to botch ADA/FMLA compliance than other forms anti-discrimination laws. Arguing the ministerial exception is one way to defeat an otherwise valid ADA case.

A return to the pre-ADAAA bad old days?

But when I started practicing in 2005, ADA cases were harder to win. What changed was the ADA Amendments Act of 2008 which broadened the definition of disability. That change made ADA cases easier to prove.

Those changes to the ADA also made it easier for workers to heal from work injuries and return to work after injury. Pre-2008, if an injured worker was not ready to return to work after their 12 weeks of FMLA leave they would likely be fired. This threat often forced injured workers to attempt to return to work before they were ready. In tandem with “100 percent healed” policies, injured workers would also work with their doctors to downplay or eliminate work restrictions. An employee who returned to work with “no restrictions” before ready risked injury and also compromised the value of their workers’ compensation case.

But if courts extend Hosanna-Tabor and Morrisey-Berru to health care workers, the past is prologue for those workers. If courts extend these cases to hold the FMLA does not apply to health care workers, the future may be worse than the pre-ADAAA past.

Common law employment law claims?

Left unaddressed by the Supreme Court is whether religious employers can claim exemption from common law employment law claims. For example, Nebraska law makes it unlawful to retaliate against a worker claiming workers compensation. The Nebraska Workers Compensation Act covers churches and church employees. Arguably it would defeat the purpose of that law to allow churches or religious employers to retaliate against those employees.

On the flip side, Supreme Court cases about employment law tend to persuade state court judges. In her dissent in Morrissey-Berru, Justice Sotomayor criticized the ministerial exception as judge-made law. But the law prohibiting employers from retaliating against employees who claim workers’ compensation is also judge-made. That fact may make judges in Nebraska more willing to create a ministerial exception in common law anti-retaliation claims.

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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Does higher unemployment mean higher workers’ compensation benefits?

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Last fall, I wrote about my opinion that good economic conditions often lead workers to be underpaid for work injuries.

But will that conclusion change now that unemployment has increased to historic highs? Maybe, here is how I believe higher unemployment could affect the value of workers’ compensation cases.

Loss of earning power

Nebraska law pays back injuries, head injuries, mental injuries, burns, multiple body part injuries on how they impact your ability to work. Nebraska calls the impact of a work injury on your ability to work “loss of earning power” or “LOEP” for short.  A medical opinion about the harm, restrictions or loss of use caused by an injury is just starting point in deciding loss of earning power.

Courts consider social and economic factors along with physical restrictions in calculating loss of earning power. Those other factors include: education, age, where you live and transferable skills.

The competitive labor market

Where you live is important because it gives the court an idea of the jobs available to you. Oftentimes in workers’ compensation cases there is an argument about which cities or areas to include in a job market. But the mere availability of work in your area doesn’t determine your loss of earning power.

Under Nebraska law, loss of earning power is based on a competitive labor market. When times are good, the players in the workers’ compensation system ignore the idea of a competitive labor market.

But when unemployment rises, lawyers, judges and vocational counselors, (the experts who help decide LOEP) may remember the idea of a competitive labor market. In a competitive labor market, someone who lost a job due to a work injury is going to have difficulty finding a job. The same goes for workers with serious work restrictions.

Retail jobs, along with food service jobs, are considered by many to be an employer of last result. But when unemployment spiked in March, Wal-Mart has 1,000,000 applicants for 150,000 open jobs.  In comparison, Ivy League school Cornell University accepted 14.1 percent of applicants in this year. So I think it’s fair to say that the labor market is competitive. (I’ve noticed a lack of articles about the “skills gap” and “employee ghosting” since March)

No place like Nebraska?

Under Nebraska law, judges decide loss of earning power based on local economic conditions.. The good news/bad news for Nebraska workers is that Nebraska still has the lowest unemployment in the nation. Nebraskans may not see a major increase in permanent disability benefits due to economic conditions.

But workers who live outside of Nebraska can claim Nebraska workers compensation benefits. Generally they can claim benefits if they were hurt in Nebraska, hired in Nebraska or their employer is based in Nebraska. Residents of other states would have their loss of earning power or disability determined based on where they live. These workers may see increased permanent disability benefits.

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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More redeterminations by the NDOL as Nebraska unemployment appeals increase?

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In a first for me, the Nebraska Department of Labor reversed a finding that my client had quit without good cause and awarded my client full unemployment benefit without a hearing.

The procedure where the Nebraska Department of Labor reverses itself on benefit determination without a hearing is called redetermination. As unemployment claims and unemployment decision appeals increase, I believe the Nebraska Department of Labor will use increasingly use this procedure.

What is redetermination and how is different than appeal

Normally reversing a decision by a claims adjudicator requires filing an appeal under Neb. Rev. Stat. §48-634. The appeal usually leads to a hearing where an administrative law judge decides whether someone is eligible for unemployment benefits.

But Neb. Rev. Stat. §48-631 allows an adjudicator to reconsider their decision. They can reconsider based on newly discovered wages, miscalculated wages or determinations made on misrepresentations of fact.

Now misrepresentation sounds like and would apply to fraud by an employer or employee. But, 219 NAC 15 001-D(1)  broadly defines misrepresentation for the purposes of redeterminations. For the purposes of redetermination, ignorant misrepresentation can prompt a redetermination. A lawyer may know how to obtain documents or know what documents to submit to prove a case for unemployment that a newly unemployed worker wouldn’t have thought to submit initially.

Why I think increasing in unemployment claims will lead to more redeterminations?

First, I think the Nebraska Appeal Tribunal, the court that hears unemployment appeals, is looking to manage their case load. As a result of the pandemic, I estimate the case load at the Tribunal has nearly tripled since before the COVID pandemic.

Consequently the increase in case loads since the pandemic has doubled the time between appeals and hearings from about four to eight weeks.  But by law, the Appeal Tribunal wants to schedule hearings as soon as possible. But one advantage to a longer lag between appeal and hearing date is having more time for discovery.

With more time, a lawyer can submit those documents to the Tribunal well in advance of hearing. By submitting those documents to the Department of Labor, the Department can make a redetermination short of hearing.

Redetermination as summary judgment?

In regular civil cases, courts can dispose of cases through summary judgment. Summary judgment is a disposition of a case based on documents without a trial. The purpose of summary judgment is to speed up case resolution and save court time.

However the Nebraska Appeal Tribunal lacks a summary judgment procedure. In normal times something like summary judgment is unnecessary. However as appeals back up, the redetermination procedure may function as a form of summary judgment in the Nebraska Appeal Tribunal.

Redetermination isn’t always the end

But, parties can still appeal from a re-determination — this means employers. But in my experience, employers are less likely to appeal determinations that go against them. Addtionally, the CARES Act makes it less likely that employers will have their rates go up or be charged if an employee quits with good cause or is fired without good cause. This lessens their reason to file an appeal

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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Fast and Federal: How LGBT Nebraskans should sue for discrimination on the job

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In a somewhat surprising 6-3 decision, the United States Supreme Court held firing an employee because of sexual orientation or gender identity is illegal under federal law.

This meaningful decision was even more meaningful in Nebraska. Nebraska lacks state laws that prohibit workplace discrimination based on gender identity and sexual orientation.

So, how do gay, lesbian and transgender individuals seek justice for workplace discrimination in Nebraska?

180 days to file with EEOC

If you want to sue your employer for sexual orientation or gender identity discrimination in Nebraska, you should file a charge with the federal Equal Employment Opportunity Commission. The charge must be filed within 180 days of when you were fired or your employer took adverse action against you. This is the safest way to bring a case.

Filing a charge of discrimination against your employer is not the same as suing your employer. But under federal law, you should file a charge of discrimination before you can sue your employer. Federal law also requires you to file in federal court. You have 90 days from getting this written permission, called a right to sue, to file in federal court.

Nebraska law normally allows you 300 days to file a charge of discrimination. Charges filed within the 300 days under state law are normally timely under federal law as well. But since Nebraska doesn’t formally cover gender identity or sexual orientation, it is uncertain whether the Nebraska Equal Opportunity Commission (NEOC) would accept that charge. It is also uncertain or whether the EEOC would accept a charge filed after 180 days.

I believe any charge of discrimination based on gender identity or sexual discrimination filed after 180 days would be challenged. as untimely.

How you win your case

I’ve read a lot of misinformation on social media (no surprise) about how discrimination cases work. First, as Justice Gorsuch makes clear, gender identity or sexual orientation does not need to be the sole reason you were fired. Sexual orientation or gender identity just need to be part of the reason you were fired.

Second, the vast majority of discrimination cases are proved by circumstantial evidence. Just because your employer doesn’t tell you that you were being fired for being gay or transgender doesn’t mean you can’t win your case. In a related note, your employer making up a reason to fire you isn’t a defense either. In fact, this would help your case as making up a reason to fire someone as cover for a real reason is defined legally as pretext. Pretext is circumstantial evidence you were fired for an unlawful reason.

Finally, being fired for poor performance or breaking a rule at work may not be a defense to a discrimination case. If your employer tolerated the same misconduct by a similarly situated heterosexual or cisgendered co-worker, that would also prove discrimination.

After 180 days but before 300 days

Nebraska law does not require that you file a charge of discrimination with the NEOC to sue your employer for illegal discrimination.  But Nebraska has a 300 day statute of limitations on filing a civil suit against an employer for discrimination. In other words, under state law in Nebraska, you can circumvent the NEOC altogether.

But why would you file a state law claim when state law doesn’t expressly include gender identity and sexual orientation?

The answer is that courts in Nebraska tend to follow federal law in interpreting our state’s anti-discrimination laws. So, you could file a case within 300 days and still succeed under Nebraska state law. But there is no guarantee the Nebraska Supreme Court would follow the United States Supreme Court. Even if the Nebraska Supreme Court found in your favor, the employer would be almost certain to appeal. Appeals can be costly and time consuming. They can also delay resolution of a case.

Bad employees can win discrimination cases, but…

Finally any employee suing their employer for gender identity or sexual orientation discrimination under current Nebraska state law would be acting as a test case. In practical terms that means you need to have a very strong case. All three cases in the United States Supreme Court decision fit that description. Nebraska law doesn’t include an “so-so” or “mediocre” employee exception to our workplace discrimination laws. But in practical terms, a court may be tempted to dismiss a test case involving a sub-par employee.

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

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Will COVID barriers do double duty for workplace safety?

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Barriers designed to stop the spread of COVID-19 are popping up in stores, restaurants and offices. These barriers may also protect employees from violence.

A 2012 study by the Indiana Department of Labor showed that bullet proof glass was effective in protecting convenience store clerks from violence. The study also showed that barriers discouraged violence by preventing criminals from climbing or jumping over counters.

Even before COVID-19 retail and service employers were taking measures to protect employees against violence. Hy-Vee, a major Midwestern grocery chain, ended 24-hour operations this year before the COVID pandemic. That move likely protected employees from violence. Last year, I wrote about a local bank that started to restrict entry and another bank that put up barriers to protect tellers.

Companies took these measures before the term “essential worker” entered widespread usage and applied to retail employees. One silver lining to the COVID crisis is the newfound respect gained by retail, delivery, warehouse and other service employees like fast food workers.

The rise of the essential worker

This newfound respect could translate into newfound political clout. Many states have proposed laws giving workers a presumption of compensability for COVID-related claims under workers’ compensation laws. Some states have included retail employees within those presumptions.

Federally, Rep. Carolyn Maloney (D-N.Y.) introduced the Pandemic Heroes Compensation Act of 2020. Modeled after the September 11th Victim Compensation Fund, the bill would allow essential employees or their families to claim compensation for injuries related to COVID. This fund would either supplement or provide an alternative to state workers’ compensation laws.

I believe this a semi-revolutionary development. Pre-COVID, first responders like police and firefighters held a privileged status within workers’ compensation laws. For example, in many states firefighters get a presumption of compensability for heart attacks. For non-firefighters looking to have an on the job heart attack covered by workers’ compensation, there is a higher standard of proof than a regular workers’ compensation injury.

First responders, in Nebraska and in many other states, can receive “mental-mental” workers’ compensation benefits. Mental-mental injuries are mental injuries without a physical injury. All other workers need to show some physical injury to have mental trauma from a workplace incident covered by workers’ compensation.

I believe politics explains why first responders have more protections under Nebraska workers’ compensation law. Politicians want support from first responders. First responders also have enormous political muscle through their unions. Most retail workers, at least in Nebraska, aren’t represented by unions. Some management-side attorneys worry, for good reason, that more employees may form unions in the wake of the pandemic. Labor organizing among retail employees could be necessary to translate goodwill from the public into improvements in working conditions.

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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Feds prosecuting COVID fraud by employees

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My jaw dropped last Tuesday when I read a blog post by Ohio-based management defense attorney Jon Hyman.

Hyman posted the Department of Justice criminally charging an employee for allegedly defrauding his employer by submitting a forged doctor’s note stating he had COVID-19. Human Resources and management-side defense social media share a near obsession with Family Medical Leave Act (FMLA) fraud by employees.

So why can HR now sic the FBI on employees who forge  off-work notes?

The CARES Act, interstate commerce and taxing power

The answer to this question is the CARES Act. Passed in response to the COVID-19 crisis, the CARES Act amended the FMLA to provide some employees with paid leave related to COVID-19. The CARES Act also used federal funds to expand unemployment benefits related to COVID-19.

Normally state law would govern the prosecution of small-time workplace fraud under crimes like forgery and unemployment fraud. But a federal bailout creates federal criminal jurisdiction. The United States Department of Justice is aggressively prosecuting COVID fraud. Some employer-advocates question the use of the federal power to regulate interstate commerce for the good of employees. But the interstate commerce clause also expands the ability to federalize crime. It seems like employer-advocates are welcoming the expansion of federal authority to prosecute fraud by employees.

Federal taxes partially fund unemployment benefits. This would give the federal government the power to federalize unemployment fraud through the taxing power granted to Congress by the Constitution.

The real COVID fraudsters

The Georgia case is the first known incident of an employee being prosecuted for forging a medical note. COVID-related fraud mirrors workers’ compensation fraud in that most fraud is not committed by employees.  Apparently organized crime is submitting false unemployment claims. Some individuals and businesses are falsely submitting claims under the Paycheck Protection Program. If an employee suspects their company is abusing the Paycheck Protection Program they could bring a claim under the False Claims Act.

But while low level employees are not committing the vast majority of COVID fraud, low-level employees are the easiest to prosecute. Prosecuting low-level employees for COVID fraud serves at least two purposes for employers.

Reopening and unionizing

As the perceived threat of COVID recedes, many businesses are reopening and employees are returning to work. Employers complain that some employees are reluctant to return to work because of enhanced unemployment benefits. However many employees are expressing safety concerns about COVID exposure. Publicizing the prosecution of COVID fraud by employees calls into question the legitimacy of employee safety concerns. Criminalizing COVID fraud by employees also allows employers and their mouthpieces in the media to portray workers worried about COVID as welfare cheats.

The use of state power on behalf of employers against employees serves another purpose. Mike Elk of Payday Report tracked walkouts and strikes related to the COVID 19 pandemic. Management-side pundits are also expressing concern about rising pro-union sentiments by employees.  Prosecuting employees is one way to intimidate employees who want to form unions or engage in collective action in the workplace.

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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