Tag Archives: employee classification

Does the decline of 24-hour retail mean a safer workplace?

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The Lincoln Williamsburg Hy-Vee, just north of our Lincoln office, joined other Hy-Vee stores in ending 24-hour operations

Hy-Vee Stores ended 24-hour operations in most of their stores throughout the Midwest . Did Hy-Vee’s move help workplace safety for their workers?

Maybe.

24-hour retail and workplace violence

Retail workers are increasingly subjected to violence on the job. Violence at stores increases during overnight hours and in stores where alcohol is sold. Some police departments believe 24-hour retail establishments are public safety risks. So by closing at midnight, Hy-Vee may be lowering the risk of injury from violence for their overnight employees.

However Hy-Vee failed to mention worker safety as a reason for ending 24 hour operations. (The reasons sound like a lot of corporate speak for reducing staff.) In my view, Hy-Vee deserves criticism for some workplace safety practices. I noticed Hy-Vee has implemented a light duty program where injured employees literally sit and/or stand and do nothing. In my experience, these programs are borderline abusive and usually force employees to return to work too soon.

Online shopping and the gig economy

Customer convenience drove the expansion of 24-hour retailing. But many shoppers skip the store all together for the convenience of online shopping and delivery.

Online retail has increased warehousing and delivery jobs that have safety risks of their own. Companies looking to save money contract out delivery to gig economy companies like Shipt and Door Dash Shipt and Door Dash classify their workers as contractors. These contractors lack employment protections like workers’ compensation.  California recently enacted Assembly Bill 5 (AB5) to extend employment protections to gig economy workers. California codified the employee-friendly ABC test in AB5. New Jersey and New York are looking at following California’s lead by classifying gig economy workers as employees rather than independent contractors.

Gig economy workers in Nebraska

Nebraska lawmakers have remained silent on whether gig economy workers should be defined as employees or independent contractors. Our state’s workers’ compensation law uses a more employer-friendly “economic reality” test to decide whether a worker is an employee or contractor.

But even using the economic reality test, the Nebraska Supreme Court defined taxi drivers as employees rather than contractors for the purposes of workers compensation. Under that case law, I believe you can argue credibly that most gig economy employees should be deemed employees under the Nebraska Workers Compensation Act.

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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Federal legislation may make it easier for injured workers to change jobs

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A Jimmy John’s franchise subjected sandwich makers to non-compete clauses

Recently introduced federal legislation could make it easier for injured and disabled workers to switch jobs without fear of having to fight a non-compete agreement.

The Freedom to Compete Act, introduced by Florida Senator Marco Rubio, would ban non-compete agreements for all employees deemed to be non-exempt employees under the Fair Labor Standards Act. Non-exempt employees tend to be hourly and blue-collar workers.

The Freedom to Compete Act was prompted by reports of low-paid hourly workers being subjected to non-compete agreements. Most notably,  a Jimmy John’s franchise in Illinois subjected sandwich makers to non-compete agreements.

In October, I wrote about how the threat of a non-compete agreement may deter an injured worker from seeking work with another employer that is easier for them to do physically.

Non-competes in Nebraska

Nebraska outlaws restraints of trade by statute  and by case law. But non-compete agreements can be enforceable if they are reasonable in scope – for a limited time and geographic area – and ancillary to a contract of employment.

The general test of whether a non-compete is enforceable in Nebraska is that it is 1) not harmful to the public 2) not greater than necessary to protect employer’s legitimate interest and 3) not unduly harsh or oppressive to employee.

Courts in Nebraska tend to focus on whether the compete is too broad to protect the employer’s legitimate interest. A non-compete would likely to be held to be unenforceable under this clause if the employee had no personal or business contact with customers or prospective customers, didn’t know or have access to confidential information, has no skills or knowledge different than what they would have acquired in another business and the employer had no trade secrets regarding their industry.

The issue of whether a non-compete is unduly harsh is a separate issue. My feeling is that a good argument could be made that changing jobs as a way of essentially self-accommodating a work injury would fall into that category. I believe the Zweiner v. Becton-Dickinson East  case would bolster such an argument, but litigation is almost always uncertain and it can be costly. An injured worker looking at the prospect of a workers’ compensation claim may not be willing to take on a non-compete fight as well.

Other questions about Freedom to Compete

Other commentators have pointed out that Freedom to Compete could make already contentious non-compete cases even more contentious by turning them into employee classification cases.

Back in October, I wrote that non-competes need to be fixed legislatively. Some states have began introducing legislation to further limit non-compete agreements, I question whether Freedom to Compete would pre-empt state laws on non-compete clauses for white collar FLSA exempt employees. I wonder if Freedom to Compete isn’t a federal effort to head off state level reforms and even federally preempt some favorable state laws on non-compete clauses for white collar employees..

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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