Biestek v. Berryhill: Bad for SSDI claimants, but good for civil plaintiffs?

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In Biestek v. Berryhill the Supreme Court upheld the partial denial of Social Security Disability Insurance (SSDI) benefits to a claimant based on the opinion of a vocational counselor that the employee could find work in the national economy. The Supreme Court upheld the denial of benefits despite the fact the vocational counselor would not disclose the data that supported her opinion and the ALJ refused claimant’s request for the counselor to reveal the data that formed her opinion.

What interested me in the case, in addition to the vocational rehabilitation issue, was the dissent authored by Justice Gorsuch that was joined by Justice Ginsburg. Viscerally I liked the powerful language of the Gorsuch dissent in a case where I disagreed with the result. After all in a SSDI case the government has the burden to prove the availability of work once a claimant proves impairment. I can’t imagine not being able not being able to evaluate the foundation an adverse opinion. (Particularly an opinion that concluded there was low-skill, light duty manufacturing work available during the Great Recession of the late 2000s/early 2010s)

But ultimately the majority relied on the very deferential “substantial evidence” standard in upholding the denial of benefits. The more I think about the case, I think Justice Sotomayor’s separate dissent was better reasoned, if more nuanced and less emotionally resonant than Gorsuch’s dissent. Nonetheless, I think there are some important takeaways from Biestek.

1. The war on SSDI continues — The Biestek decision indicates that appellate courts will be even more reluctant to reverse denials of benefits. The Biestek decision comes on the heels of anti-applicant legislation and administrative rule changes, rooted in elite consensus against SSDI, that began in the late Obama administration and have accelerated in the Trump administration.

The extreme deference to ALJs could be troublesome in the wake of the Lucia v. SEC decision. In that decision the Supreme Court held it was unconstitutional under the appointments clause to hire ALJs as civil service employees rather than have them appointed by the exectuvie branch. In the wake of the Lucia decision, the Trump administration has decided to change how ALJs are appointed. This has raised concerns that ALJs will be politicized and biased against applicants. The Biestek decision could give politicized ALJs a greenlight to deny benefits without fear of reversal.

2. There are some advantages for plaintiffs in proceedings governed by the rules of civil procedure.  One advantage of administrative type hearings like SSDI are relaxed rules of evidence and procedure that can make it less costly to pursue a claim. But since the rules of civil procedure don’t apply in SSDI, an applicant can be denied benefits on evidence that wouldn’t pass muster in a civil proceeding. 

Thankfully in Nebraska workers compensation, the rules of civil procedure apply (See NWCC Rule 4) and a plaintiff is free to investigate in detali the basis for an opinion made by a vocational counselor.

3. Confidentiality has run amuck in litigation — In Biestek, the ALJ agreed that a vocational counselor could claim confidentiality as a legitimate reason not to disclose the basis for their conclusion that the plaintiff could work. In that regard, Biestek is consistent with a push by corporate defendants to keep court papers and proceedings confidential. I recommend a recent article by Reuters about how confidentiality n litigation helped exacerbate the opioid crisis. I think corporate defendants abuse claims of confidentiality in the litigation process.  The Biestek decision seems to implicitly approve these practrices

4. Biestek could be a good summary judgment case for plaintiffs — The Gorsuch dissent drew parallels between the substantial evidence standard used in administrative proceedings and the substantial evidence standard in summary judgment. But reading between the lines it seems the majority in Biestek believes the substantial evidence standard is a more relaxed evidentiary standard than is believed by Justice Gorsuch.

One study shows that rougly 90 percent of employment law cases are dismissed on summary judgement. Clarification from the Supreme Court that substantial evidence is a relatively relaxed evidentiary standard, could make federal judges less likely to grant summary judgment motions.

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 SSDI, Supreme Court. Social Security and tagged , , .

Legislation seeks to prevent heat-related deaths on the job

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Reps. Raul Grivjala (D.-Ariz.) and Judy Chu (D.-Cal) introduced federal legislation that would mandate OSHA  standards for workers exposed to high heat as well as mandating paid cooling breaks, access to water and training to recognize heat stroke.

The Asuncion Valdiva Heat Illness and Fatality Prevention Act is named after a California worker who died after picking grapes for ten hours in 105-degree heat and modeled after a California law passed by Rep. Chu when she served in the California legislature.

Fortunately, deaths and injuries from heat exposure are covered by workers’ compensation in Nebraska. This can even be true if heat causes a heart attack where there is a heightened standard for causation. But compensation in workers’ compensation cases is limited and no amount of money can replace the life of a family member.

Nebraska recently experienced nasty heat wave that is still effecting most of the country. While agricultural production in Nebraska is more capital-intensive than in states like Arizona and California, many workers are still vulnerable to heat. The first to come to my mind would be residential construction workers building new houses in shade less subdivisions.

Climate change is expected to raise average summer temperatures in Lincoln, Nebraska by 5.5 degrees Fahrenheit by 2050 and by 11 degrees by 2100. Heat will be an even larger occupational risk than it is today.

Chicago experienced a heat wave in 1995 that killed 749 people. This little remembered natural disaster could be a precursor for more heat-related health problems and deaths in the future and the need to take precautions. The Chicago heat wave of 1995 shows how northern and cold weather areas could be particularly vulnerable to risks from climate-change induced heat waves. Federal legislation about heat standards on the job would be one precaution.

I would urge everyone to contact their elected representatives to support the Asucnion Valdiva Act. Nebraska’ legislators lo like to tout the value of manual labor as a way for young people to build character. But building character shouldn’t mean sacrifcing safety. I also believe that Nebraska should adopt a state law version of the Asuncion Valdiva act.

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, Workers Compensation and tagged , .

Guest Post: Is Hands-Free Really Safer?

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On Monday I wrote about the legal problems associated with the hazards presented by GPS for professional drivers. Huntsville, Alabama attonrey Jeff Blackwell has agreed to let me re-publish his blog explaing why in-car devices like GPS are hazardous.

The Alabama Legislature has been debating bills that would prohibit the use of handheld devices like cellphones while driving. Last year, Georgia passed a similar hands-free law. Is hands-free safer? Will a hands-free law reduce needless car accidents and injuries in Alabama?

A National Safety Council public opinion poll indicates 80% of drivers believe hands-free devices are safer. Yet, safety experts remain doubtful. The Senior Director of the Transportation Initiative at the National Safety Council had this to say on the topic:

While many drivers honestly believe they are making the safe choice by using a hands-free device, it’s just not true.

The problem is the brain does not truly multi-task. Just like you can’t read a book and talk on the phone, you can’t safely operate a vehicle and talk on the phone.

A journalist asked the hosts of MythBusters the question. What did they do? They tested the issue with a driving simulator at Stanford University. The simulation involved 30 people driving in a busy, virtual neighborhood while talking on a cellphone. Half the drivers used handheld phones. Half talked hands-free. The results were amazingly similar. Only one driver passed the test in each group. Almost identical numbers crashed or drove the wrong way. The MythBusters conclusion:

It is no safer to use a hands-free device while driving than it is to use a handset.

I have mixed feelings on the issue. Do I believe hands-free is safer? Yes and no. Driver distractions are MANUAL, VISUAL and COGNITIVE. What are some manual distractions? Eating or drinking while driving. Reaching for items in the car. What are some visual distractions? Looking for items in the car. Watching an electronic device. Reading billboards (with their ridiculous clown lawyer ads). What are some cognitive distractions? Talking to passengers. Daydreaming. Feeling exhausted or fatigued. What makes handheld cellphones so dangerous? They involve ALL three types of distraction at the same time.

With a hand-free device, you reduce the manual and visual distractions while driving. I think that does increase safety. The problem is that many drivers don’t fully consider cognitive distractions. While most people realize that looking or reaching while driving diverts focus and attention, they tend to discount cognitive issues. Instead, they (wrongly) think they can multi-task. Many people are biased about their ability to multi-task. They wrongly believe they can safely concentrate on driving while mentally performing other tasks.

I think the Alabama Legislature should pass a hands-free law. It’s a start. If handheld devices are less accessible while driving, maybe some of the most dangerous activities will decrease. Maybe we won’t see reckless drivers surfing the internet with their phones while trying to drive. While the perception of hands-free safety is certainly greater than the reality, we should pass a hand-free law and carefully study accident statistics in the next few years.

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 auto accident, distracted driving, Nebraska, personal injury and tagged , , .

GPS poses safety, legal risks to new professional drivers

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Contrary to conventional wisdom, one study shows the most dangerous distraction for drivers isn’t texting and driving, but the use of GPS navigation systems.

As driving jobs expand with rise of the gig economy and online shopping drivers, especially inexperienced drivers, may be relying on GPS navigation to the detriment of their safety of the job. Navigation devices can be a visual and cognitive distraction. The occupational hazard posed by GPS navigation brings up some important legal issues and hazards for professional drivers.

Employee classification is a major issue. Employees can collect workers’ compensation even if their own negligence caused the accident. In other words, the employee who got in an accident while distracted by their navigation system is still covered by workers’ compensation.

But it you are classified as an independent contractor, you are on your own for medical bills, lost income and permanent disability you are on your own if you are involved in accident where you at fault.

Unsurprisingly, gig economy companies like Uber and Lyft are fighting to classify their drivers as contractors. Gig economy companies are involved in a high-profile legislative fight in California that may have broad implication in other states and even at a federal level.

New employees are more likely to get injured. This is not good news for drivers in the high turnover ride hailing industry. A study of Uber drivers shows that nearly 2/3rds quit after six months and another study shows only 4 percent of drivers stay on for a year. The majority of drivers also drive for less than one year.

Ride hailing drivers may be particularly vulnerable to other distractions. Some ride hailing drivers will operate what amounts to a command center on their dashboard because they drive for multiple apps and monitor price information with separate phones.

Because of all those potential hazards to ride hailing drivers, I don’t think workers’ compensation attorneys can talk enough about misclassification of ride hailing drivers. But even drivers who are employees are vulnerable to risk from GPS caused auto accidents. Workers’ compensation only covers medical expenses and lost income from an injury. Workers’ compensation, at least in Nebraska, would not cover the cost of an auto insurance deductible for a driver who damaged their vehicle in a work injury where the employee was at-fault.

Many workers who do driving or delivery jobs also work at other jobs. Even if an injured driver is covered by workers’ compensation workers’ compensation disability benefits are only based on earnings from that employment.

For example, if an employee gets hurt in Nebraska and can’t work because of an injury on a second job where they made $150 per week, their temporary disability pay is limited to $100 per week even if that injury prevented them from doing another job where they made $600 per week. So even if the employees real loss of wages is $750 per week from an accident, they would be limited to $100 per week on a temporary basis. Nebraska law (Neb. Rev. Stat. 48-121(4)) assumes a 40-hour work week for the purposes of permanent disability, but employees can still be undercompensated for injuries on a second job – particularly if the second job had a relatively low hourly wage.

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, Workers' Compensation and tagged , , .

Surveillance drones: Coming soon to Nebraska workers’ compensation?

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Last summer Brody posted about the possibility of drone surveillance in workers’ compensation cases in Nebraska. Some new developments lead me to believe that drone surveillance of injured workers in Nebraska may be coming soon.

The first development is the fact that Amazon has patented its delivery drones for aerial surveillance. This technology is intended for home security but it could easily be transitioned for surveilling injured employees. Granted, technology companies tend to oversell their technological innovations, but Amazon plans on starting drone delivery by the end of this year.

I would assume that Amazon drones would be based at their fulfillment centers (warehouses). Amazon recently opened up a warehouse in Nebraska at the intersection of I-80 and Nebraska 370. (Amazon trucks and vans have proliferated in Lincoln recently) That location could make it easy to open up drone surveillance in metropolitan Omaha.

Some states have attempted to legislate against drone surveillance. But I suspect that providers of drone surveillance will argue that state laws regulating drone surveillance would be preempted by federal law. Though the issue hasn’t been addressed by the United States Supreme Court, a majority of jurisdictions have held that the Federal Aviation Act (FAA) preempts state workers’ compensation fee schedules that regulate air ambulance charges.

Could federal regulators step in to prevent drone surveillance in workers’ compensation cases? Even assuming that intervention would survive a court challenge, it would seem unlikely for now. The FAA is an agency of the Department of Transportation. The current Secretary of Transportation Elaine Chao previously served as Secretary of Labor in the George W. Bush administration. As Labor Secretary, Chao was not considered to be worker-friendly.

The best way to limit drone surveillance would be through federal legislation. That doesn’t seem likely so long as Elaine Chao’s husband remains Senate Majority Leader. (#draintheswamp) But again, if Amazon is going to be a provider of drone surveillance they are going to have bi-partisan clout to stop efforts limiting drone surveillance. Amazon already provides computing services to the Department of Defense.

But there is a federal election coming next year. If you are concerned about the weakening of workers’ compensation laws and the growing influence of Amazon, support  candidates who share those concerns. (Veiled endorsements by Jon Rehm, do not represent the views of the firm or its other partners or support staff)

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, Workers' Compensation and tagged , , , .

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, 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 .

Blockchain: Another tool for management to use against workers?

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Just like staying at a Holiday Inn Express made you smarter in the mid-to-late 2000s, writing a post about “blockchain” will make any blogger sound smarter in the late 2010s.

The latest entry in the blockchain derby, was “Is blockchain the next frontier in preventing sexual harassment?” by Jon Hyman. The post does a good job of explaining blockchain as a technology that creates secure, verified and unchangeable records. Hyman also writes how blockchain could be used for reporting of sexual harassment – and presumably other forms of unlawful discrimination. (The clear explanation of blockchain makes the post worth reading.)

The innovation or “disruption” described by Hyman is that there is an blockchain program that allows employees to bundle reports of harassment made against the same harasser.

So some Silicon Valley genius, or poorly paid coder, developed a program that mimics protected concerted activity. There might be an intellectual property issue here as this concept was actually invented in the 19th century – it’s called a labor union.

Meanwhile outside of the gilded and dreamy world of HR Tech, the rights of employees to from unions and engage in protected concerted activity  are being curtailed.

My problem with the use of blockchain software run by a third-party on behalf of management are numerous. First it would impose hurdles in the discovery process. If similar complaints of harassment or discrimination are stored by a third-party, HR may not know to disclose them in discovery. I suspect this may not be entirely accidental. Harassment and discrimination claims usually require an employer have knowledge of the discrimination and the opportunity to take remedial action. Outsourcing reporting and creating an extra step in reporting discrimination gives employers additional legal protections.

Also, if similar complaints about harassment or discrimination were stored on a blockchain run by a third-party vendor, it might require subpoenaing those records. Besides potential jurisdictional issues over subpoenas, tech companies are famously unwilling to cooperate with legal investigations. Apple refused the request of the FBI to unlock the I-phone of a mass shooter in San Bernadino, California. If tech companies will stonewall the FBI, I am sure they would stonewall a plaintiff’s lawyer in a civil case.

In contrast, a call to a union business agent or Local leader will often yield information about comparators and company practices in a discrimination case. Unions aren’t perfect, but neither is HR or the latest technology. Innovations in information technology can empower employees.  One example is an app created by the United States Department of Labor designed to combat wage theft. But blockchain technology controlled by management is just another tool in maintaining the dominance of capital over labor in the workplace.

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 discrimination, employment law 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, 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 , , , .