Tag Archives: arbitration

Pro/con: Workers’ compensation retaliation as a jury question

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Oklahoma rejected a 7th Amendment challenge to their workers’ compensation retaliation law

The Oklahoma Supreme Court rejected a constitutional challenge to Oklahoma’s workers compensation retaliation statute based in part on the fact the statute doesn’t provide for trial by jury.

Workers compensation retaliation is a common law tort in Nebraska that provides for a trial by jury in a court of general jurisdiction. I believe there are upsides and downsides of making workers compensation retaliation cases tried to juries in a court of general jurisdiction rather than tried in a workers compensation court of limited jurisdiction.

I see some procedural advantages to trying workers’ compensation retaliation cases within the workers’ compensation court, but in substance I think it is better to try these cases in courts of general jurisdiction.

Here are the upsides of trying workers compensation retaliation cases to juries in courts of general jurisdiction.

1. Unlimited damages — Jury verdicts generally aren’t capped. There have been recent seven figure verdicts in workers compensation retaliation cases in Alabama and California. Workers compensation limits damages but those damages are capped with the understanding that fault isn’t relevant to getting benefits. Retaliation is clearly a matter of fault, so it should follow that damages should be unlimited in retaliation cases.

2.  Bringing other causes of action — Workers compensation laws limit the jurisdiction of workers compensation courts. So even if a workers’ compensation court can adjudicate a workers’ compensation retaliation case, it doesn’t have jurisdiction to hear an FMLA, ADA or whistleblower claims that often arise along with a workers’ compensation retaliation case.  Oklahoma’s workers’ compensation retaliation statute was passed in 1976. The ADA and FMLA were passed in the early 1990s before those laws went into effect. I would imagine states with workers’ compensation retaliation by statute have run into similar conflicts.

Another related drawback for a plaintiff is res judicata. An employee forced to try a workers’ compensation retaliation case in a workers’ compensation court, could be unable to bring a related ADA or FMLA claim in a court of general jurisdiction if they lost their workers compensation retaliation claim.

Advantage of trying workers compensation retaliation cases in workers compensation courts.

1. Less motion practice — Time consuming summary judgment motions are the bane of the existence of lawyers who represent employees. Statistically most employment law cases end on summary judgment.

Summary judgment is used a lot less in workers compensation. In Nebraska the judges discourage summary judgment because of the short time it takes to bring a case to trial and because of the extra work required in hearing what amounts to a trial on paper. My impression from listening to judges in other states is that they would agree with their colleagues in Nebraska.

2. Less risk of arbitration — More employers, encouraged by recent Supreme Court decisions, have forced employees to have private arbitrators rather than courts decide employment law disputes. But cases brought in an administrative agency are exempted from arbitration clauses. Workers compensation cases can be decided within the judicial and executive branch. They are also usually not jury trials. In short, it would be harder to force a workers’ compensation retaliation case into arbitration if it is heard within a workers’ compensation court.

 3. Simpler and more certain procedure — Workers’ compensation courts generally have simplified rules of evidence and procedure that is supposed to reduce the cost of litigation. Since workers’ compensation courts are generally tried to single judges instead of jurors, it would be easier to predict how they would decide a case.

Though workers’ compensation judges in Nebraska can’t adjudicate retaliation cases, reported and unreported cases would indicate that the judges are aware of the issue and reasonably sympathetic to employees who may have been retaliated against for bringing workers’ compensation claims.

Counter-point: Hearing retaliation cases could delay and complicate resolution of workers’ compensation cases.

Justice delayed is justice denied. In Nebraska, an injured worker can get a hearing date within 6-9 months of fling a petition and get a written decision in a matter of weeks after trial. I had a trial last month that lasted one hour inclusive of pre-trial matters, opening statements, witness testimony and closing arguments. I suspect Nebraska’s efficiency in adjudicating work injury claims would be impaired if our workers’ compensation court judges had to adjudicate workers’ compensation retaliation cases. I suspect it would take longer to to get a trial, trials would take longer and decisions would be slower.

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

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

Will there be a fix for legislation like the Protz fix?

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Doing the math: How the AMA 6th costs workers with a wrist injury

In a dubious triumph for bi-partisanship, Pennsylvania reduced workers’ compensation benefits for many if not most workers with permanent injuries in 2018. 2018 was a bad year legally for workers rights and the so-called Protz fix was emblematic of the year for a few reasons.

But 2018 also showed some glimmers of hope for workers such that there may be fixes for legislation like the Protz fix.

Legislatures take, courts make and vice versa

Pennsylvania Governor Tom Wolf signed HR 1840 which legislatively overturned the Protz decision which held Pennsylvania’s language using the “most recent” edition of the AMA Guides to Permanent Impairment to determine compensation for permanent injuries was unconstitutional. Pennsylvania “fixed” the Protz decision by expressly adopting the AMA 6th.

The AMA 6th has been criticized, correctly in my view, because it is bases impairment on inability to do general life activities versus working activities. A recent study confirms this suspicion long held by plaintiff’s attorneys.  From a practical point of view, the AMA 6th usually leads to an injured worker receiving less compensation than they would under previous editions of AMA impairment “cookbook.”

When I started practicing in 2005 a worker who had a carpal tunnel surgery usually had a 5 percent impairment under the AMA 5th. Now, that same injury is typically a 1 percent impairment under the AMA 6th.

For a worker in Nebraska earning $15 per hour, the difference between the two impairments on a wrist injury amounts to $2800. After the Protz “fix” was passed, the Pennsylvania Compensation Rating Bureau filed for a 14.74 decrease in workers’ compensation insurance rates.

My big takeaway from the Protz decision and the subsequent “fix” is just how much work needs to be done politically to make sure injured workers are fairly compensated for their injuries. The Protz “fix” passed easily. Plaintiff’s lawyers resorted to constitutional challenges because many state legislatures have weakened workers’ compensation laws. Protz shows that appellate victories can be fleeting because legislatures can easily overturn those decisions.

Does the plaintiff’s bar need to worry about “constitutional challenges” of their own?

2018 also saw some disturbing court decision that could impact workers’ compensation. In SEC  v. Lucia the United States Supreme Court held an investment adviser convicted of securities fraud by the Securities and Exchange Commission (SEC) was unconstitutionally convicted because the Administrative Law Judge (ALJs) who tried his case was hired in violation of the appointments clause. Iowa is one of many states workers’ compensation cases are heard by Administrative Law Judges that are hired as civil servants rather than appointed by the Executive. SEC v. Lucia could help employers/insurers to make persuasive appointments clause arguments under state constitutions that such arrangements are unconstitutional.

Protz relied on an argument about unconstitutional delegation of legislative powers which is fundamentally a conservative argument which was used to strike down New Deal legislation. Workers’ compensation reforms have also been challenged on a contracts clause basis  which is another conservative argument used against pro-workers legislatsion in the past. Maybe these arguments appeal to conservative pro-business types, but they could be used against advocates for injured workers and their clients.

But there are some reasons for hope that emerged in 2018.

2018: Reasons for hope for injured workers

But 2018 did see gains for Democrats in state  and federal elections. To be blunt, pro-worker is often a code for “Democrat”. While there are some exceptions, most conservatives are terrible for workers. Democrats generally oppose extreme conservatives, so they serve some purpose. But in Pennsylvania the so-called Protz fix was signed by a Democratic governor and supported by Democratic state legislators. In my experience, many Democratic elected officials aren’t going to support workers unless they get prompted, but they are usually lack the same ardor to gut workers’ rights.

More hope can be found outside the realm of electoral politics. In 2018 citizens started taking direct action. Some of the biggest gains made for workers in recent memory happened during teachers’ strikes in Arizona, Oklahoma and West Virginia this year. The chattering classes asked “Why don’t these striking teachers just vote for the right people?” Well, they tried and it didn’t work. Rank and file teachers in Arizona, Oklahoma and West Virginia found a better way to advocate for themselves.

The teachers strikes took place in the wake of the Janus decision that dealt a blow to public sector unions. Workers’ rights were also dealt a blow by the Epic decision that, among other things, allowed employers the right not to join class and collective action cases through so-called arbitration agreements. Workers for Chipotle and Uber have come up with the ingenious hack of filing in mass for individual arbitrations. 

I see the challenge for 2019 for lawyers for injured workers’ is finding away for this newly emerging energy and creativity from workers in support of their own rights  focused on improving workers’ compensation. I’ve written before about state senators Dan Quick of Nebraska and Lee Carter of Virginia who used their bad experiences with workers’ compensation to try to improve the workers’ compensation laws in their state.

So while lawyers for injured workers may be on the defensive in the legislative and judicial arena, we may have newfound allies that could help us reverse the steady erosions of workers’ compensation laws.

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 Constitutional law, Nebraska, Workers' Compensation and tagged , , , , , , .

Can civil rights agencies help employees beat arbitration clauses?

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If confirmed, will Washington Nationals superfan Brett Kavanaugh just call balls and strikes when it comes to workplace justice issues?

The Lincoln Commission on Human Rights (LCHR) entered an award last month of $175,000 on behalf of a man who they found was discriminated against based on nationality and age.

While a six-figure judgment in favor of an employee in Lincoln is newsworthy in and of itself, the procedural back story of the case should be just as interesting to lawyers and observers of the legal system in light of recent Supreme Court decisions.

A federal judge overruled the employer’s motion to compel arbitration in the case. In a memorandum recommending the motion to compel arbitration be overruled a federal magistrate cited to the 2002 Supreme Court case, EEOC v. The Waffle House to hold that the Lincoln Commission on Human Rights was not a party to arbitration agreement and was free to pursue relief on behalf of the employee. The memorandum cited Iowa and Massachusetts cases applying Waffle House to state anti-discrimination agencies to find it applicable to the LCHR.

The ability of employees to use civil rights agencies as an end run around arbitration clauses, has taken new importance in the light of the Supreme Court’s recent Epic decision was which provided even more ability for employers to enforce arbitration agreements.

But there are some potential barriers for employees who wish to have an anti-discrimination agency pursue a discrimination claim on their behalf.

The most practical barrier is the lack of resources of civil rights agencies. In Nebraska, an employee has to wait several months before an investigator is assigned to their claim. This means that evidence gets spoiled and overworked investigators may not be as willing to pursue a case because of workload concerns. Without good evidence an agency is not going to pursue a claim on behalf of an employee in the public hearing process.

The inadequate funding of administrative agencies stems from a general hostility that many conservatives have towards the so-called “administrative state” or executive agencies that generally regulate the economy. (These same folks are deferential to executive agencies that comprise the national security state and law enforcement) This hostility is also evidenced in judicial skepticism of administrative agencies. This skepticism was on display from the Supreme Court in the Masterpiece Cakeshop decision. In Masterpiece the court found that comments made by a state human rights commissioner were sufficient evidence of bias to overturn a decision finding a business owner who refused to bake a cake for a gay wedding had committed illegal discrimination. I would expect more of that heightened scrutiny of decisions made by civil rights agencies in the future.

Finally, Waffle House may not remain controlling law. Waffle House was decided by a relatively narrow 6-3 decision with Justice Clarence Thomas writing the dissenting opinion. Legal journalist Ian Millhiser has deemed Thomas to be the most influential justice  because of his long record of dissenting and concurring opinions that are increasingly being adopted as law due to changes in the composition of the court.

Since Waffle House was decided in 2002, the Supreme Court has added Chief Justice John Roberts and Associate Justices Neil Gorsuch and Samuel Alito. Gorsuch is noted for his particular hostility to administrative agencies.  Supreme Court nominee and DC Circuit Court Judge Brett Kavanaugh’s views on administrative agencies allegedly aren’t as strident  as those of his fellow Georgetown Prep alum, Neil Gorsuch. But an employer looking to overturn the Waffle House decision may find a friendly audience with a five-justice majority comprising Justices Roberts, Thomas, Alito, Gorsuch and Kavanaugh.

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

This entry was posted in Arbitration, civil rights, Supreme Court and tagged , , , , .

A truly Epic failure for workers

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He just turned 50 last year…

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

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

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

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

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

What is a protected concerted activity?

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

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

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

 

Can Epic be made to benefit workers?

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

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

Constitutional perspectives

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

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

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

This entry was posted in Arbitration, NLGA, NLRA, Supreme Court, Wage and Hour and tagged , , , , .

First Responders, Retaliation and Labor Law

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First responders and correctional employees aren’t immune from retaliation from their employers when they turn in work injuries for the unique hazards that they face. However, most first responders, law enforcement and corrections employees have some additional job protections against retaliation. This post is meant to give first responders, law enforcement and corrections employees a basic overview of the job protections they have as union and public sector employees. Those rights can be summed up in three words: Weingarten, Garrity and Loudermill.

Weingarten Rights

Weingarten rights are named after the Supreme Court decision that holds that union members have a right to have a union official present in a disciplinary meeting with supervisors or a meeting that could lead to discipline. Though Weingarten doesn’t apply to public sector unions, most public sector unions, including NAPE/AFSCME in Nebraska, make Weingarten rights part of their collective bargaining agreement.

Weingarten rights can be trampled on when aggressive employers claim they just want to talk to employees rather than subject employees to the third degree. This can be especially prevalent in corrections and law enforcement where supervisors are trained in interrogation techniques.

If you have been subject to an interrogation like this, you need to let your union representative know right away.

Garrity Rights

Garrity rights give public sector employees, regardless of whether they are in a union or not, the right to not incriminate themselves in an investigation that could lead to discipline. Employers will give a Garrity warning similar to a Miranda-type warning. In my experience, Garrity rights can be a bit dubious. Employee misconduct that would justify termination doesn’t always rise to the level of anything remotely illegal. This is especially true if an employer is trying to manufacture evidence to retaliate against a worker. But under Garrity, an employee can be terminated for refusing to answer questions. So employees may feel compelled to answer hours of questions from trained law enforcement officials for alleged misconduct that, even if true, would not rise to anything illegal. This can be a dangerous proposition because such questioning may create the appearance of dishonesty on the part of the employee. Especially in the context of law enforcement or corrections, dishonesty can be a factor that allows an employer to skip the normal progressive disciplinary procedures.

Again, employees should reach out to their union representative if they are faced with this situation.

Loudermill Rights

Loudermill rights compel public employers to give some explanation of why they are terminating an employee and give the employee some opportunity to explain why she or he should not be terminated. (7) Loudermill applies to all government employees, not just union employees. Though Loudermill gives additional protections to what typical at-will employees have, in substance, Loudermill doesn’t afford a lot of protections. In many cases, the decision to terminate has already been made, and feedback from an employee may harm the employee’s chances of winning at a personnel board, arbitration or a wrongful-termination case.

Again, employees should be reaching out to their union representative if they are subject to what is called a Loudermill hearing.

Personnel Board and Arbitration Hearings

Government employees can usually appeal terminations to a personnel board, such as the Nebraska State Personnel Board, or have a termination heard by an arbitrator if the worker is represented by a private union. These hearings are easier for employees to win than wrongful termination cases because generally the employer has the burden to show there was just cause to terminate the employee. In civil court, the employee has the burden of proof that the termination was unlawful. Those hearings can also generate evidence that can be helpful in wrongful termination cases. In many cases, the union will pick up the cost of a personnel board hearing or arbitration.

This post has repeatedly mentioned the importance of involving a union representative and the benefits to employees of a union contract. Nebraska is what is called a “right-to-work state,” which means that employees covered under a union contract cannot be forced to pay union dues. However, if workers do not pay dues, unions may not have the resources needed to fight for their members. The opinion of this firm is that unions in Nebraska, like NAPE/AFSCME, do a good job of fighting for their members, so we would encourage public employees in Nebraska to pay their union dues.

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

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