Tag Archives: FLSA

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, 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 FLSA, Nebraska, non-compete agreements, Workers' Compensation and tagged , , , , , .

Gorsuch, Chevron and Workplace Law

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Judge Gorsuch

Judge Gorsuch

Employers and their attorneys are widely hailing President Trump’s nomination of 10th Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court. Part of the reason that management-side lawyers are praising Gorsuch is his position on Chevron deference. Gorsuch’s views on Chevron could affect how workplace laws are interpreted and how they apply to workers.

Chevron deference is a legal rule that a court will give the benefit of the doubt about the interpretation of the law to how the executive agency charged with enforcing that law understands the law. Gorsuch has criticized Chevron on separation of powers basis, stating that Chevron deference gives too much power to the executive branch at the expense of the legislative and judiciary branches. Recently, government agencies have been interpreting employment laws in a way that is more favorable toward employees. Recent rules issued by the Equal Employment Opportunity Commission regarding the Americans with Disabilities Act are a prime example.

Many workers who get hurt on the job are told that they must come back to work with no restrictions. Chevron deference could be a powerful legal tool for workers faced with such policies. The new EEOC regulations on the ADA outlaw 100-percent-healed policies or policies that require plaintiffs to return to work without restrictions. In the EEOC guidance on the issue, the EEOC cites Kaufman v. Peterson Health Care VII, LLC 769 F. 3d 958 (7th Cir. 2014) as an example of policies that they believe to be unlawful under ADAAA. This case represents a subtle but real shift from current 8th Circuit law as stated in Fjellestad v. Pizza Hut of America, 188 F. 3d 949, 951-952 (8th Cir. 1999) where the 8th Circuit joined other federal circuits that held that failure to engage in an interactive process in accommodating a disability was not per se discrimination, and that there was no duty to engage in the interactive process. The EEOC’s interpretations of the new regulations still require that a plaintiff be able to perform the essential functions of the job with or without reasonable accommodation.

But as indicated by Kaufman, courts may be less likely to dismiss cases before trial, or in legal terminology, to grant summary judgment, on the issue of whether a plaintiff could perform the essential functions of the job with or without accommodation if the defendant does not engage in an interactive process or summarily decides that an employee should not be allowed to return without restrictions.

The fact that there is a split between regional appellate courts, a so-called circuit split, over “100 percent healed” policies increases the chances that the U.S. Supreme Court will decide whether 100-percent-healed policies violate the ADA. Another issue where there is a circuit split that the U.S. Supreme Court will decide is the legality of mandatory arbitration clauses in employment agreements.

Many workers unwittingly give up their rights to have employment-law disputes heard in court when they agree to mandatory arbitration clauses as a term of employment. In D.R. Horton Inc., 357 N.L.B. No 184 (2012) the National Labor Relations Board ruled that mandatory arbitration clauses prohibited Fair Labor Standards Act collective action cases because they interfered with protected concerted activity under 29 U.S.C. §157 and 29 U.S.C. § 158. In Lewis v. Epic Systems, 823 F. 3d 1147, 1154 (7th Cir. 2016), the 7th Circuit struck down a mandatory arbitration clause partly based on giving Chevron deference to the NLRB’s decision in D.R. Horton. The 9th Circuit agreed with the 7th Circuit in Morris v. Ernst and Young, LLP, No 13-16599 (Aug. 22, 2016). Unfortunately for plaintiffs, the 8th Circuit disagreed with the D.R. Horton decision in Owen v. Bristol Care, 702 F. 3d 1050 (8th Cir. 2013).

If confirmed, Gorsuch would be unlikely to give much weight to the opinions of the EEOC or NLRB in interpreting employment laws. Chevron deference is an unpopular concept with pro-business conservatives. Recently, the GOP-controlled House of Representatives passed legislation that, if enacted, would abolish Chevron deference.

Conversely, Chevron deference is a popular concept with progressive employee and civil-rights advocates, as it allowed the Obama administration to expand employee protections in the face of a hostile Congress. But with the advent of the Trump administration and his immigration policies, progressives have a newfound appreciation for separation of powers.

Also, employee advocates probably will not like many of the new rules and regulations issued by Trump appointees such as Labor Secretary nominee Larry Puzder. A prospective abolition of Chevron could be helpful to challenging rules made by a Trump administration. An example from the last Republican administration is instructive. In 2007, the U.S. Supreme Court in Long Island Care at Home Ltd. v. Coke, 551 U.S. 158 (2007) gave Chevron deference to Bush administration rules to exclude home health aides from coverage under the FLSA. It was nine years later that the rule was overturned, giving Chevron deference to Obama administration rules regarding home health aides and the FLSA.

Nebraska Employers Should Be Required to Post Information about Workers’ Compensation Benefits

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hanging-300x300The federal government requires that employers post summaries of rights under laws like the Fair Labor Standards Act (FLSA), the Occupational Safety and Health Act (OSH) and anti-discrimination laws like Title VII at their worksites. Most states, including Nebraska, have similar requirements. But Nebraska is among a minority of states that does not require employers to post notices about an employee’s rights under our state’s workers’ compensation act. This lawyer believes that this practice needs to change in Nebraska.

My informal inspection of worksites in Nebraska has shown me that when anything is posted about workers’ compensation, it is usually a poster about treating with an occupational medicine clinic if a person is hurt at work. The problem is that if you are hurt on the job in Nebraska, you can pick your own doctor. If an employee doesn’t exercise the right to pick their own doctor, they are taking the risk of undercutting their workers’ compensation claim.

Illinois has a good poster that explains an injured employee’s rights and responsibilities under their workers’ compensation act. I particularly like the Illinois poster because it tells employees that 1) they have some right to pick their own doctor and 2) they can’t be discriminated against for filing a claim. To me, the Illinois poster reads a lot of what an attorney like me would tell a prospective client who called with a work injury claim.

But not all posters are created equal. I think Kansas provides an example of a poster that doesn’t really help employees. Though the poster is bilingual, it doesn’t really tell employees anything about their rights and responsibilities besides what they need to do to file a report of injury. The poster also encourages workers to call their employer’s workers’ compensation insurer or claims administrator for help. This is problematic, because employees and employers don’t always have the same interests in a workers’ compensation claim.

My view is that readily available, accurate and unbiased information is good for injured employees to protect their rights under any state’s workers’ compensation act. I think posters like the Illinois poster meet these qualifications. Of course, detractors might say that employees can readily find information on the internet, so posters are a relic of the 20th century.

In response, I would say that information off the internet isn’t always reliable. Part of the reason has to do with how search engines work. Marketers and lawyers try to game the system so when an injured worker is looking for a lawyer, those firms always show up in searches. Frankly, that’s part of the reason I write blog posts like the one you are reading now. Even though I try my best to explain the law accurately, I have a slant toward representing employees, so I can’t claim to be unbiased.

But a good poster or summary of rights is about as close to unbiased as you can get. Employers also have some fear of displaying unbiased information about workplace rights in the workplace. Some employers fought a poster from the National Labor Relations Board (NLRB) informing employees about their right to form a union.

Knowledge is power, which is why I believe all Nebraska employees should have complete, unbiased and clear information about their rights under the Nebraska Workers’ Compensation Act readily available in their 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.

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Why CNAs and Home Health Aides Should Care about the Fight over a Federal Regulation

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090429-A-0868C-005A U.S. District Court in Washington, D.C., recently struck down a federal regulation that would mandate that home health aides are paid the minimum wage and paid overtime under the federal Fair Labor Standards Act (FLSA). Though the decision will likely be appealed, this decision is still a bad decision for the men and women who do the hardest jobs in health care – home health aides and certified nursing assistants.

Why home health aides aren’t covered by federal wage laws

Home health aides were exempted from the FLSA 40 years ago in order to make caring for the elderly less expensive. However, companion care has become a big and very profitable business. An index of publically traded home-health-care stocks has consistently outperformed the stock market as a whole for the last 13 years. This profitably is due in part to the minimum wage and overtime exemptions for home health aides.

How the home health exception affects other jobs in the medical field

The federal government estimates that nearly 1 million are employed as home health aides, while private sources estimate that number as 2 million. Home health is also a fast-growing field of employment. Home health aides essentially have the same job duties as certified nursing assistants (CNAs). CNAs are generally covered by minimum wage and overtime laws, but workers with the same skills and same duties are exempt from those laws if they are working as home health aides. CNA wages are pushed down by home health aide wages, which are exempt from federal wage laws.

Why pay is about more than wages

A recent study of CNAs showed that nearly 60 percent of CNAs report injuries during a 12-month period. The injury rate is similar for home health aides. The study also showed that higher-paid CNAs were injured less frequently than lower-paid CNAs. The study indicated that organizational factors really drove injury rates among CNAs. In other words, in settings where CNAs are truly valued, paid fairly and trained, the injury rates are lower. But if CNAs are treated as low-wage, high-turnover cogs in a machine, then injury rates are higher. Low pay for CNAs and home health aides isn’t just an issue for employees. Low pay for home health aides and CNAs has been linked to poor patient care.

While the Obama administration has been criticized for being too aggressive in enforcing the FLSA, the U.S. Department of Labor announced that they will delay enforcement of the home health aide regulation until July 2015. This assumes courts will let the Department of Labor actually enforce the regulation. Anyone concerned about this issue should contact their members of Congress to support legislation that ends the home health aide exception. People should also contact their state legislators to support legislation that would ensure that home health aides are covered by state wage and hour 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 employment law, Health, healthcare, Workers' Compensation and tagged , , , , .

Misclassification – Department of Labor Recovery

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department_of_labor

 

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm in North Carolina. Employer fraud happens more than businesses would like folks to think, and Mr. Jernigan writes a “Top 10” list at the end of each year talking about this problem. His list in 2012 was called “$97 Million In Fraud: 2012′s Top 10 Workers’ Compensation Fraud Cases.” That blog post includes an example of labor violations when a company in Massachusetts misclassified employees as subcontractors. The article that was the focus in last Monday’s blog post, “Connecticut Employers Shut Down For Not Paying Workers’ Compensation Insurance,” also talked about misclassification as a form of employer fraud. Although it appears to happen in construction a lot, this type of fraud can occur in other industries, too. And as can be seen in just the article below, misclassification fraud isn’t limited to specific states but can happen anywhere. It is helpful to see some action occurring, both in the courts and legislatively.

The U.S. Department of Labor has recovered more than $1 million in back wages and liquidated damages for 196 employees of Bowlin Group LLC and Bowlin Services LLC out of Ohio and Kentucky. Bowlin Services installed cable for Insight Communications, a cable, telephone and Internet provider in Kentucky. The defendants misclassified 77 employees as independent contractors and violated the Fair Labor Standards Act (FLSA) by denying these workers access to critical benefits, including minimum wage, overtime, family and medical leave, unemployment insurance, workers’ compensation and failing to maintain accurate payroll records.

Misclassifying employees negatively impacts our economy, generating losses to the U.S. Treasury, Social Security and Medicare funds, state unemployment insurance, and state workers’ compensation funds. It also leads to unfair competition because businesses that play by the rules are at a disadvantage.

This problem has become so acute in Tennessee that last month the legislature passed Senate Bill 833, which has been signed into law and imposes penalties on construction companies for misclassifying workers in an attempt to evade workers’ compensation premiums. A Tennessee study in 2012 revealed losses of up to $91.6 million in workers’ compensation premiums. North Carolina has identified the problem but has yet to take any action. Until states aggressively prosecute misclassification, this fraud will continue.

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.

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