Tag Archives: Amazon

Amazon warehouse tornado tragedy highlights importance of neutral risk in workers’ compensation

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At least six workers died in an Amazon warehouse in southern Illinois on Friday night because of a December tornado. In a blog post over the weekend, Professor Micheal Duff pointed out that in some states, workers killed by weather events like tornados may not be covered by workers’ compensation.

In other words, even if you injured or killed at work, you or your family may not be covered by workers’ compensation. In order to collect workers’ compensation benefits an employee needs to be hurt by some risk legally related to employment.  Workers’ compensation laws are state laws and each state has different laws about what is and isn’t covered by workers’ compensation

Fortunately, in Nebraska, workers killed or in injured in a tornado would be covered by workers’ compensation. In the case of Nippert v. Shinn Farm Construction, the Nebraska Supreme Court held that injuries due to neutral risks like tornados, that everyone is exposed to, would be covered by workers’ compensation. Even though the decision was controversial at the time, Nebraska courts seem to accept the positional risk doctrine in some circumstances.

The exclusive remedy doctrine and third-party claims for contractors

Workers’ compensation benefits are limited because employees give up their right to sue their employers for negligence in exchange for not having to prove fault. Some are faulting Amazon for not doing more to protect their workers from the tornado. However those employees and their families will likely not be able to bring negligence claims.

But Amazon typically contracts with other companies to deliver packages out of their warehouses. In theory, any Amazon contractor injured or killed by the tornado could bring a workers claim against their employer and could bring a third-party negligence claim against Amazon.

Neutral risk and COVID-19 workers’ compensation claims

Part of the difficulty of covering COVID-19 exposure under workers’ compensation laws relates to showing an employee was exposed to COVID-19 at work and that they were engaged in some activity benefiting their employer when they were exposed to COVID-19. If a plaintiff can successfully argue that COVID-19 is a neutral risk like severe weather, employees would have an easier time covering COVID-19 exposure under workers’ compensation.

The neutral risk doctrine, natural disasters and climate change

Professor Duff hypothesizes that because of climate change we will see more pandemics and more extreme weather events. I agree with his hypothesis. I also agree with him that risks like extreme weather and infectious diseases do not fit easily within the framework of workers’ compensation. Duff is working on a paper about an “expanded conception” of causation in workers’ compensation. I look forward to reading the paper when it is completed next year.

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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Why local media matters to workers’ compensation and workplace safety

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A story in the Seattle Times about injury rates at Amazon fulfillment centers shows how a state workers’ compensation agency and enterprising local reporters can focus attention on workers compensation.

Seattle Times reporter Benjamin Romano reported that injury rates at Amazon fulfillment centers had increased nearly four-fold over 4 years from 4 per 100 to 15 per 100 employees. Romano’s reporting was based on a public report from the State of Washington’s Labor and Industry, L & I, department which administers and regulates workers’ compensation in Washington state. L& I sets workers compensation rates in Washington State.  Per the Seattle Times, Amazon warehouses will pay a higher rate for workers’ compensation than meatpacking plants in that state.

Workers’ compensation laws are state laws. Washington state is fairly unique in having a state-run workers’ compensation system. Nebraska allows employers to obtain private workers’ compensation coverage.

So, as Amazon expands in Nebraska, what leverage will the Nebraska Workers’ Compensation Court have over Amazon?

First of all, for now, First Reports of Injury, are public records. Any interested party can look at those reports. But of course those reports don’t always correlate with an injury and they are based on what an employer reports.

Major employers with high injury rates also like to self-insure. The Nebraska Workers Compensation Court must approve applications to self-insure on an annual basis. Amazon being denied the ability to self-insure or losing the ability to self-insure would be a newsworthy event. However many high-injury employers avoid the scrutiny of self-insurance by insuring with high deductible plans.

But if a tree falls in a forest and no one is there to hear it, does it really make a sound? I bring up this old question to discuss the gradual disappearance of local journalism. If news happens, but there are no reporters to cover it does news exist?.  Lee Enterprises has made Nebraska a one newspaper state. Lee has nearly halved the number of reporters at Omaha World-Herald in the last two years. Any long time readers of the Lincoln Journal-Star or Omaha World-Herald know from first-hand experience how the news content in those papers has thinned out over the years.

Why does the decline of local media effect workplace safety.  In the Obama administration, OSHA began a policy known as “regulation by shaming” or publicizing fines against companies who violated workplace safety rules. A study by an economist at Duke University found one press release by OSHA had the same effect as 210 inspections. But if there isn’t a strong local media to report on and amplify these stories, then the regulation by shaming strategy loses effectiveness.

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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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 & 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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Could suicide nets be coming to American workplaces?

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Coming to a worksite near you?

Stressed out and disaffected white collar workers seem to idealize blue collar work as physically taxing, but not mentally straining. The stress-free blue-collar worker is personified by the character Larry in the classic movie, Office Space.

But in reality, many blue-collar jobs can be every bit as mentally stressful, if not more stressful, than white-collar jobs. The Daily Beast ran an investigative report involving suicide attempts by workers in Amazon warehouses. The mental stress comes from trying to keep up with the fast pace of work.

The complaints of Amazon workers eerily mirror those of Chinese employees of Apple contractor Foxconn, which notoriously installed suicide prevention nets to prevent further employee suicides.

I hear many of the same complaints about stress from about the pace of work from my clients who work in meat packinghouses. A work injury can often worsen the stress of keeping up with production because a physical injury usually makes it harder to do a job. The Daily Beast article profiled one worker who suffered increased mental problems after an ankle injury on the job impacted his ability to keep up with the demands of his job.

Mental stress is part of my many workplaces, but purely mental injuries usually aren’t covered by workers’ compensation laws. For a mental injury to a warehouse worker in Nebraska to covered by workers’ compensation, it would have to be directly related to a physical injury. Mental stress from being unable to keep up with job demands due to a physical injury could be covered.

In Nebraska, certain workers such as police, firefighters and other first responders can collect workers’ compensation for purely mental injuries. But even before the Daily Beast article about extreme mental distress among Amazon employees, me and other workers’ compensation bloggers have questioned why so called mental-mental benefits are limited to first responders. I’ve taken a particular interest in convenience store clerks and other retail employees are often subject to or witnesses of violent crime.

My view is the answer to why so-called mental-mental benefits tend to be limited to first responders is politics. Retail workers and non-unionized warehouse workers don’t have the kind of clout as police officers or firefighters.

First responders deserve mental-mental workers’ compensation benefits because they can be subject to terrible trauma on the job. But other workers can be also be subject to serious mental distress on the job. That stress should be covered by workers’ compensation laws in Nebraska and other states.

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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A new season for the Shameless economy?

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What’s going to happen on the next season of the Shameless economy?

Amazon made big news on Tuesday when it announced it was implementing a $15 minimum wage for all employees. 

Part of the story was why Amazon raised wages. Some pointed to low unemployment  while others pointed to popular criticism of Amazon’s labor practices. That criticism was expemplied by the Stop BEZOS Act targeting Amezon that was introducted in the Senate by Bernie Sanders.

The author of this blog falls into Amazon critics category. Last November I coined the phrase “Shameless” economy, based on the show Shameless, to describe how Amazon misclassifisied delivery dirvers as contractors.

While Amazon may win applause for raising the wages of employees, by classifiying workers as contractors they are excluding those workers from the benefits of emplyoees like unemployment and workers’ compensation. Amazon annouced this summer that it was expanding its own inhouse package delivery services and looking to contract  with “entrreprenuers”. Contractors aren’t covered by unemployment or workers’ compensation which are beneifts that are mandated by the government.  In other words, Amazon is growing its ranks of contractors which reduces its labor costs while receiving good publicity for raising wages for workers they classify as employees. 

If you watch Shameless you know the character Frank Gallagher. Frank is a terrible drunk and overall person. But occassionally Frank will seem to get his stuff in order only to fall back into his usual antics. Amazon’s labor practices are like Frank Gallagher’s behavior, every once in awhile he will get his stuff together and demand all sorts of credit. But sooner or later, as the millenials say on social media, he is back on his bulls***.

Keep an eye on Amazon.

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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Amazon, Walmart and the “Shameless” Economy

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With holiday shopping in full swing, Gizmodo just ran a long article about how Amazon is using an Uber-like app to hire delivery drivers as independent contractors.

Back in June, I blogged about a Walmart program where Walmart employees were being used to deliver packages. I pointed out in the piece that at least Walmart delivery drivers would be treated as employees in contrast to Fed Ex drivers and now Amazon drivers who have no employment protections like workers compensation or unemployment insurance if they get hurt on the job.

On social media, I’ve pointed out that Walmart actually seems to be better on employee classification than Amazon. That’s a pretty startling admission from me as Walmart has long been a target of criticism for their employment practices from our firm and any other sentient employee rights advocate with a platform.

When I read the Gizmodo article about Amazon, I thought about an episode of Shameless where the ever enterprising Lip underbids illegal aliens on a construction job with a group of rich kids looking to do volunteer work to bolster their college resumes. Up until now, Walmart has been a leader in the low wage economy. But leave it to Amazon to underbid Walmart in the race to the bottom.

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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Do Employees’ Forced Smiles At Stores Cause Mental Distress?

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Most Nebraskans and Iowans can probably sing a jingle from a regional grocery chain that promises “a helpful smile in every aisle.” But helpful smiles may have a hidden cost for employees.

A summary of 95 medical studies showed that forced cheerfulness by employees lead to psychosomatic issues like trouble sleeping, headaches and chest pain as well as decreased job satisfaction. This so-called emotional labor has also been linked to aggression in the workplace.

Retail and service industry employees are usually required to be cheerful to encourage customers to return. These pressures are likely becoming more acute as certain sectors of retail employment have declined and online giant – and burgeoning monopoly – Amazon has barged into the grocery business with their acquisition of Whole Foods.

Unfortunately, U.S. employment laws are not equipped to deal with the day-to-day mental strains placed on retail workers. Workers compensation laws generally do not compensate purely mental injuries. Workplace bullying or harassment is only legally actionable if the harassment is severe or pervasive and motivated by an unlawful factor like race, religion, nationality, sex, disability, etc. 

But employees have the power to work together, even if they aren’t in a union, to address these conditions through protected concerted activity under the National Labor Relations Act. Recently a group of employees at a Target in rural Virginia banded together to help fire a manager who had been sexually harassing employees. Granted sexual harassment may be different than forcing an employee to be cheerful when dealing with the public, but by working together employees can address unreasonable rules and requirements by an employer.

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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Rise of Online Shopping Bodes for More Dangerous Holiday Jobs

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X2_warehouseThe business press has trumpeted the fact that online sales outpaced in-store sales over the post-Thanksgiving weekend. A less-reported fact is that more temporary holiday jobs have shifted from in-store retail sales to more warehousing and transportation jobs that are more dangerous. This is especially true in the wintertime, when delivery drivers in many parts of the country are exposed to hazards from slippery surfaces and also to cold weather. 

Adding to the risk of transportation jobs is the fact that many transportation companies attempt to define their drivers as independent contractors, which means drivers would bear the cost of work injuries. Major holiday employer FedEx recently had to pay a $228 million settlement for misclassifying their delivery drivers as independent contractors. Similar arguments have been made against Uber, who is now attempting to compete with FedEx in the delivery business.

The mere fact that you signed an agreement where you agreed to be an independent contractor doesn’t necessarily mean that you are an independent contractor, but it could affect your ability to collect some employment benefits, like workers’ compensation benefits. If you are hurt as an independent contractor, you should contact an experienced workers’ compensation lawyer in your state, as laws are state specific. If you believe you are not being paid for breaks, overtime or even being paid the minimum wage as an independent contractor, then contact an experienced employment attorney as there are both federal and state laws that protect employees who are misclassified as independent contractors.

Employee misclassification adds another layer of risk for employees who hold second jobs over the holidays or any other time of the year. True independent contractors are not eligible for workers’ compensation, but many, if not most, temporary holiday jobs would not qualify for independent-contractor status. Workers’ compensation was never designed to compensate people for pain and suffering, but in the case of those injured on lower-paid holiday or second jobs, workers’ compensation benefits may not even remotely pay you for how an injury affects your ability to earn a living. Be sure to weigh the risks of taking a holiday job or any second job.

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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