Tag Archives: employment at-will

How is workers’ compensation different for top draft picks?

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New Orleans Pelicans forward, Zion Williamson (The Athletic)

It’s hard to imagine an injured highly paid professional athlete as a workers’ compensation claimant. Their wealth shields them for many of the difficulties an injured worker can experience. But their experience as injured workers gives the public insight into the some of the challenges faced by injured workers.

New Orleans Pelicans forward and NBA top draft pick, Zion Wiliamson, injured his right knee in the preseason.  Here are few takeaways on the injury and its media coverage from the perspective of a workers’ compensation lawyer.

New employees are more likely to get hurt – Studies show that new employees are more likely to get hurt on the job. In this respect Zion Williamson is similar to many other new employees.  Injuries to new employees pose all sorts of issues for injured workers. How do you calculate workers’ compensation benefits? What if you have to miss time from work? Williamson likely doesn’t have those problems for a few reasons.

Average weekly wage A major issue for new employees is how to calculate the amount of their workers’ compensation benefits. Even if Williamson wasn’t making millions of dollars, this wouldn’t be a problem for him because he has an actual employment contract that states how much he is to be paid. 

Leave for the injured new employeeA typical employee at-will employee isn’t required to be granted leave until they have been employed for one year.  That assumes the employee is covered by the Family Medical Leave Act. But Williamson is covered by a contract with the Pelicans. He is also covered by a collective bargaining agreement through the NBA Players Association. So unlike the typical new at-will employee hurt on the job, Williamson likely has the time to recover from his work injury without having to worry about losing his job.

Pre-existing injuries and uncertainties over reporting – Williamson injured his right knee playing for Duke in February 2019. At least according to press reports, there is some question about the right knee injury occurred. Nonetheless, I would assume the Pelicans will pick up Williamson’s medical care through workers’ compensation.

But if you aren’t an elite-level NBA power forward and you tell your employer you aren’t sure how you hurt your knee, but you know you hurt it eight months ago, don’t be surprised if workers’ compensation doesn’t cover that injury.

On the off chance the Pelicans deny Williamson’s workers’ compensation, claim based on causation and/or the definition of accident, Williamson probably would have the money to cover his medical treatment. Most other injured workers lack that ability.

As an aside, if it was determined that Williamson’s knee injury was caused by his play at Duke, those injuries would not be covered by workers’ compensation. Eventhough the NCAA recently allowed student-athletes to make money through endorsements, they aren’t employees who are entitled to workers’ compensation.

General ignorance of workers’ compensation – I like basketball but I don’t follow it closely. I didn’t find out about Williamson’s injury until I saw an article in The Onion entitled “Pelicans HR Informs Zion Williamson Knee Surgery Not Covered Until 90 Days Into First Season.

Employers are required to carry workers’ compensation and employees are covered by workers’ compensation on their first day of work. The Onion is satire but it’s fairly typical of the misunderstanding of workers’ compensation by the media and entertainment industry. California’s Assembly Bill 5 is often described as a bill that provides sick leave and health insurance to gig economy workers. Sick leave and health insurance often aren’t required benefits, but workers’ compensation is a mandatory benefit. AB5 expands workers’ compensation to gig economy workers.

Wall Street Journal columnist Andy Kessler was griping about AB5 in a recent column. Kessler didn’t mention workers’ compensation in his column. Any pundit opining about AB5 who doesn’t understand the fundamentals of employee benefits, should be discounted or ignored.

 

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.

This entry was posted in FMLA, Workers Compensation and tagged , , .

Will the employment at-will doctrine sink LGBTQ rights under Title VII?

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The Supreme Court will hear arguments Tueday about whether Title VII of the Civil Rights Act of 1964 expressly prohibits discrimination based on sexual orientation and gender identity. What you probably won’t hear about is the importance of the employment at-will doctrine in how the case is decided

The case for including sexual orientation within Title VII is based on the“sex plus” theory of discrimination which prohibits gender stereotyping. More broadly the equal protection arguments underlying the 2015 decision legalizing same-sex marriage would also support the inclusion of sexual orientation and gender identity within federal civil rights law.

In a brief the United States Department of Justice (DOJ) argued against expanding TItle VII protections to sexual orientation and gender identity based on a narrow reading of Title VII. Though the DOJ brief doesn’t mention the concept or doctrine of employment at-will expressly, its influence is felt strongly.

Employment at-will is judge-created or, according to an authoritative essay written by attorney Ronald B. Standler, a law professor-created doctrine created in the late 19th century. Employment at-will is a doctrine that holds an employer is free to fire an employee without cause at any time, for any reason without notice. On the flip side an employee is free to quit at any time. (Of course, employment at-will doesn’t stop employers from whining about employee ghosting. Employers also seek to enforce non-compete agreements against employees who quit)

One consequence of employment at-will, as pointed out on this blog, is that courts will narrowly interpret any exceptions to employment at-will doctrine.

Civil rights laws are exceptions to employment at-will. But opponents of expanding Title VII expressly to sexual orientation and gender identity are arguing to narrowly construe Title VII. The employment defense bar makes these types of arguments, often successfully, on a routine basis.

In a way the argument over whether to include sexual orientation and gender identity within Title VII is both groundbreaking and routine. I scratch my head when strong advocates of employment at-will  get apoplectic about the DOJ’s brief narrowly interpreting Title VII. All the DOJ is doing is narrowly interpreting an exception to employment at-will doctrine.

I also don’t understand the argument that laws prohibiting LGBTQ discrimination are economic development tools. I read an interesting article that could explain this idea.  The article was a critical exploration of the philosophy of Supreme Court Justice Clarence Thomas. Thomas, the second African-American Supreme Court justice has been critical of policies such as affirmative action. The article pointed out, somewhat sympathetically, that Thomas sees affirmative action as a matter of aesthetics among elites. In other words, the elite gets to chose what the elite looks like without having their power challenged. Inclusion is a form of marketing.

I think the idea of elite aesthetics explains how the professional-managerial class and their defenders can support LGBT rights in the workplace and employment at-will. Even if sexual orientation and gender identity are included within Title VII, those cases will still be difficult to win. Employers will still have what amounts to private sovereign immunity through exhaustion of remedies requirements. The National Labor Relations Board will still be making it harder for employees to form unions and not be subject to employment at-will.

But not all management-types are so willing to let their socially liberal instincts override their support of employer power in the workplace to create more exceptions to employment at-will. There are also many in the business community who don’t share socially liberal sentiments. I suspect this side may prevail in the argument over whether sexual orientation and gender identity are covered by Title VII.

Would it be logically inconsistent to allow same sex marriage but allow discrimination based on sexual orientation? Yes, but the importance of the employment at-will doctrine would at-least give that seeming inconsistency some logical explanation.

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.

This entry was posted in discrimination, employment law and tagged , .

Does employment at-will deter whistleblowers?

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Photo credit to Axios

A whistleblower, reportedly a CIA officer assigned to the White House, set off a political and constitutional firestorm by reporting allegations that the President conditioned delivering military aid to the Ukraine on that country investigating one of his political opponents.

Did on-the-job protections for federal workers make the whistleblower more likely to come forward?

It’s hard to know why the whistleblower came forward. But assuming the whistleblower had civil service protections, an employee of the federal government has more job security than your typical employee.

Employees of the federal government can only be fired for just cause. A typical employee is an at-will employee which means that they can be fired at any time for any reasons. While whistleblower laws protect all employees, the fact that federal employees have a just cause standard for termination gives them an extra layer of protection from getting fired than at-will employees.

State employees in Nebraska have similar protections to federal employees. I think it is reasonable to argue that those protections government employees somewhat more likely to report misconduct as they have less reasons to fear for their jobs than a typical at-will employee.

That’s not to say that whistleblowers just need to fear for their jobs. President Trump mused about killing whistleblowers. The Obama administation routinely prosecuted whistleblowers. Less prominent whistleblowers are usually subject to all sorts of petty harassment on the job. I’ve written before about how government employers seem to excel at making employees miserable if they want to get rid of an employee.

But a typical government whistleblower has less immediate fear about how they are going to earn wages than a typical private sector whistleblower.

A union contract gives private sector workers similar on the job protections to government employees. Many government employees are also covered by union contracts which helps them to further to protect their rights on the job.

Some argue that it’s too hard to fire public employees, but whistleblowing serves an important function in a free society. How many fewer whistleblowers would there be if government employees were just at-will employees who were easy to fire?

I have written a lot about employment at-will lately because the importance of employment at-will explains so much about employment law. I believe the question of whether Title VII expressly protects workers on the basis of sexual orientation and gender identity could turn on the value placed on the employment at-will doctrine regardless of whether that influence is acknowledged.

Employment at-will establishes the legal relationship between employee and employer. The employee-employer relationship can also have an impact beyond the immediate boundaries of the workplace. I think it’s worth exploring the relationship between whistleblowing and the fact that most government employees are not at-will 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.

This entry was posted in employment law, Nebraska and tagged , .

Pennsylvania court narrowly interprets workers’ comp. retaliation

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In a decision that was disappointing but not entirely surprising, a federal court in Pennsylvania held that merely getting hurt at work wasn’t enough to claim wrongful termination in retaliation for filing a workers’ compensation claim.  (h/t to Tom Robinson for his post on the case.)

At the core of this decision is assumption about employment at-will that often underlies the interpretation of all sorts of employment laws. Here is why I think the decision was wrong, why I think it was decided the way it was and what that decision means in the bigger picture.

Why I think the Pennsylvania court got it wrong

I think the Pennsylvania federal court made the wrong decision for many reasons. In Kasten v. St. Gobain, the United States Supreme Court held that a question about the location of the time clock constituted a protected activity for the purposes of the Fair Labor Standards Act. In other words, what constitutes a protected activity should be broadly construed.

Federal anti-discrimination law is also less than clear whether “protected status” and “protected activity” are really a different category. Justice Ginsburg made this argument in her dissent in the Nassar case. The reasoning behind this argument is that complaining about retaliation means that either you are member of a protected class or that someone in a protected class is being discriminated against.  In the case of a work injury, protections against discrimination should attach when an employee is hurt at work rather than when they formally file.  The reasoning supporting this proposition is that if formal filing of workers’ compensation is required, an employer is free to fire an employee who gets hurt but hasn’t filed a claim.

The importance of employment at-will

The rationale against these arguments in the Pennsylvania case was that workers’ compensation retaliation is an exception to employment at-will and the employment at-will exception should be construed narrowly by courts because of the importance of the “at-will employment” doctrine. This is a mainstream position held by most in the employment defense bar. Though employment at-will is rarely cited in federal case law involving employment issues, I believe veneration of employment at will underlies most decisions limiting the application of exceptions to employment at-will.

You can see the force of employment at-will at work in the Department of Justice’s brief arguing against including gender identity within Title VII. The argument for including gender identity and sexual orientation within Title VII is based on the “sex plus” theory in announced in the Price Waterhouse case. The DOJ narrowly construes the “sex plus” theory of discriination to argue that gender identity and sexual orientation aren’t per se covered by Title VII. That argument is supported by reasoning that requires injured workers formally file workers’ compensation claims in order to be protected against discrimination from their employers because of their injury. Both arguments rest on narrowly interpreteting exceptions to employment at-will.

Jursidcition and role of federal courts in workers’ compensation retaliation 

Another question is why was this case in federal court in the first place? Workers’ compensation and workers’ compensation retaliation cases are state law cases. But in the Pennsylvania case involved a federal ADA complaint so the court took jurisdiction under so-called pendent or ancillary jurisdiction.  Even in a purely state law claim a federal court can take jurisdiction through so-called diversity jurisdiction, if the employee and employer are citizens of different states as is often the case.

Federal law isn’t controlling over state law, but state courts often look to federal courts to interpret employment law. Federal judges have the chance to interpreter state law workers’ compensation retaliation cases in diversity jurisdiction cases In my view, federal district courts serve almost as a parallel appellate level court in Nebraska. So even if this Pennsylvania decision isn’t controlling authority, it will certainly persuade other courts faced with similar issues.

What the case means for injured workers and their lawyers 

This case stands for the proposition that injured workers are going to need to actively pursue workers’ compensation claims or risk having their retaliation claims dismissed for not engaging in the protected activity of filing workers’ compensation. This is often challenging because injured workers sometimes wrongly believe that aggravations of old injuries or overuse injuries aren’t covered by workers’ compensation. Employees may also feel that workers’ compensation is dirty or illegitimate and let that stigma discourage them from filing a workers’ compensation claim. Employers may also be discouraging employees from filing workers’ compensation claims through safety programs or by encouraging employees to shift the costs of a work injury on to private health insurance and or private disability insurance.

In short many of the same mental hurdles and practices that can complicate a workers’ compensation claim can also weaken an injured workers’ protections against discrimination.

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.

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

The Chinese province of Nebraska?

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Xi JinRicketts?

The equivalent of an economic drone strike took place a few blocks northeast of our Omaha office.

Roy Jones was an hourly customer engagement employee at the Marriott Reservation Center in Omaha. As reported in The Wall Street Journal and Quartz,  he liked a tweet by a Tibetan group congratulating Marriott for listing Tibet as a country.  

As a result of liking a the tweet, the Chinese government ordered Marriott to suspend bookings at 300 hotels in China for a week. Mr. Jones was also terminated. Matt Hanson in the Omaha World-Herald reported, Jones was under traiend and over stressed when he liked the offending tweet. Jones had little idea that liking the tweet would be offensive to the Chinese.

Chinese leader Xi Jinping made news recently becoming the Chinese leader since Mao Zedong to rule for life.  Back in 2016, I wrote a post pointing out Jinping’s increasingly authoritarian tendencies and his crackdown on employee-rights lawyers in China.  I never thought the authoritarian Jinping regime would extend its reach into what writer Matt Stoller  sarcastically described on Twitter as the “Chinese province of Nebraska.”

Nebraska’s junior senator, Ben Sasse, has made a pet issues out of the emerging threat of cyber-attacks from foreign powers. I would wonder what he thinks about a foreign power, China, having the power to fire one of his constituents?

Hanson concluded his article by concluding that Jones’ termination wasn’t right. I agree, but employment at-will allows employers broad legal protections when it comes to firing employees. In essence, employers have Jinping-like powers in the workplace. But when a foreign dictatorship has the power to fire an American worker, legislators and judges should re-think employment at-will or think about creating exceptions to that legal doctrine.

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.

This entry was posted in employment law and tagged , .