Tag Archives: gig economy

New DOL rule on employee classification will have minimal impact on Nebraska law

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Last week the United States Department of Labor announced it was changing its rule about who was an independent contractor and who was an employee.

This rule, if implemented, is newsworthy because it defines who the Department of Labor thinks is entitled to protections under laws such as the Fair Labor Standards Act which entitles employees to minimum wage and overtime pay protections. If enacted it may lead to a broader definition of employee less favorable to so-called gig economy companies such as Uber. This could give the Department some leverage of employers if they decide to prosecute wage claims against employers.

But the rule change is a different story for individual claimants.

Let’s put aside the fact that federal courts may not accept the Department’s interpretation. Let’s also put aside the even management-side bloggers like Eric Meyer don’t think the rule change changes the standard all that much.

But even putting aside those issues, the proposed changes will have little to no impact on state laws. As I’ve been pointing out for years, states make their own determinations about who is an employee and who is a contractor and who is protected under their laws regardless of federal law.

For example, Nebraska’s minimum wage is $9.00 per hour and instead of the federal minimum rate of $7.25 per hour. Nebraska also lacks an outside sales exemption like federal law which makes it easier for sales workers to bring wage claims.

States can also apply different sets of standards about who is an employee for the purpose different laws. Under Nebraska Employment Security Act, employees are covered under the more employee-friendly ABC Test for the purposes of unemployment benefits. But in order to get workers’ compensation benefits an employee show they are an employee under a more restrictive ten factor test.

But commentators like Meyer are correct in arguing that the different standards of who is an employee and who is a contractor often overlap. I would also assert that courts will find ways to bypass the ABC test.

Nebraska law is an example of how the tests overlap and how courts ignore ABC. In Larson v. Hometown Communications (1995), the Nebraska Supreme Court applied the ten factor test to hold a 10 year-old newspaper carrier hurt on the job was an employee for the purposes of the Nebraska Workers Compensation Act.

But the court came to a different conclusion on a similar employment arrangement in Dernier v. Omaha-World Herald. (1997) In that case, the Supreme Court bypassed the ABC test under Neb. Rev. Stat. §48-604(5) then applied the ten factor case to hold Dernier was a contractor for the purposes of unemployment benefits.

Please don’t take this post to mean that I think the DOL’s rule change is meaningless. Some state’s may follow what the feds do. Some federal judges may be willing to use the new federal rule is a thumb on the scale in a close case. But from my experience, at least at a state law level, state court judges are going to apply controlling state law with little or no deference given to federal rules that interpret parallel federal laws.

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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How essential workers are excluded from the “grand bargain” of workers’ compensation

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If you asked the average person on the street, “If convenience store clerks at the same store were subjected to violent crimes, including murder, three times in the last five times, do you think you could bring a negligence case if the store failed to protect its worker from a violent attack ?” Most people would say yes.

Candidly, many people with legal training would say the same yes, but for the exclusive remedy of workers compensation.

The exclusive remedy rule is at the heart of the so-called “grand bargain” of workers compensation that provides limited benefits in exchange compensation regardless of employee or employer fault.

Like most workers compensation lawyers, I can recite that last paragraph in sleep. But sometimes employer-conduct can and should cause workers compensation lawyers to put aside technical legal thinking.

The convenience store I described in the first paragraph is the Kwik Shop at 14th and Adams in Lincoln, Nebraska. A clerk at that store was assaulted in late June. A clerk was murdered in 2016 and there was in assault on a clerk in 2020.

That store has done little to protect workers from violent crime. But workers compensation laws in Nebraska do little to incentive stores to protect late night convenience store clerks because they don’t cover purely mental trauma injuries. In other words, if a robber points a gun at a clerk, but doesn’t hurt them physically, that clerk can’t collect workers compensation benefits for the mental trauma.

But even if there is a physical injury, an employee is limited to benefits based on their wages. Employees don’t have the option of filing a negligence case where damages, in theory, are unlimited.

Retail workers are in a similar boat to other essential workers who had difficulties claiming workers’ compensation benefits due to COVID-19 exposure. In order for COVID-19 exposure to be covered by workers’ compensation they need to show either the injury arose out of and in the course and scope of employment or is a disease particular to their job. Those can be difficulty standards to meet and it prevented many workers from even seeking benefits.

Of course some states created presumptions of workers’ compensation coverage for COVID-19 for essential workers, but we did not in Nebraska.

So in short, essential workers are limited to workers compensation coverage for obvious on-the-job hazards that could be prevented or mitigated by their employers. But due to the structure of workers’ compensation laws, many of those hazards aren’t covered by workers’ compensation.

Of course other essential workers such as delivery drivers and taxi drivers are defined as contractors as so-called gig economy companies attempt to re-write our social insurance and employee classification laws to enrich their shareholders.

I think the structural weaknesses of workers compensation laws lead attorneys to look for ways to sue employers in tort, bad faith or even under retaliation laws. But these laws can be watered down by courts and civil litigation only pays people for harms after they happen. Stronger workers compensation laws that protected all workers from obvious hazards could make other types of litigation less necessary.

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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Questions over PUA or UI eligibility add to delays in unemployment benefits

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Even if Congress and the President agree on a bill that extends unemployment benefits, millions of workers who are eligible for unemployment benefits aren’t receiving benefits due to administrative logjams at state labor departments administering unemployment insurance programs.

I want to untangle one particularly ugly thread of the ghastly tapestry of the failure of our social insurance programs during the pandemic: how worker misclassification has complicated the paying of unemployment benefits.

Contractors and gig workers who lost their job during the pandemic can apply for Pandemic Unemployment Assistance (PUA). Typically, independent contractors aren’t eligible for unemployment insurance (UI), but the CARES Act made these workers eligible for unemployment benefits through PUA. Gig economy companies like Uber pushed for separate benefits for their drivers who are classified as contractors rather than employees.

Tax reform legislation in 2017 encouraged workers to self-classify as contractors, so when it came down to applying for unemployment many self-defined contractors went the PUA route rather than applying for traditional unemployment insurance.

But, a state labor department may look at a self-defined contractor and decide the individual is an employee, which means that they should apply for traditional unemployment insurance instead. In practice this has meant workers have applied for PUA only to be told they need to apply for UI. Some workers who apply for UI are told they need to apply for PUA.

From a legal and academic point of view, I would agree that most workers classified as contractors are probably employees. But if you are waiting on benefits to pay for food and shelter, who cares where the money comes from PUA or traditional unemployment so long as you get the money. Forcing state labor departments, often staffed by overworked and/or undertrained claims examiners, to decide on how to classify workers just adds more delay to an already backlogged unemployment insurance claims process.

PUA was pushed by firms like Uber to provide some benefits for their workers who the company classifies as contractors. Five years ago,  a think tank aligned with the corporate wing of the Democratic Party held a symposium about how to provide some benefits for gig workers without making gig companies pay for full employee benefits. PUA would be the first mass effort to provide benefits to contractors.

Critics of this so-called “Third Way” approach were vindicated. But unfortunately the critics corporate Democrats being right means millions of people are suffering. Former National Labor Relations Board Member and AFL-CIO General Counsel Craig Becker pointed out in 2015, that the more classifications you have for workers the more litigation and uncertainty you have about legal obligations. That uncertainty is likely playing out within state labor departments weighing whether workers are eligible for PUA or UI.

That uncertainty leads to delay which means unemployed workers go without unemployment benefits – and families go without food and shelter in the winter during a pandemic.

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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Sacrificing essential workers in the name of “bipartisanship”

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Last week daily COVID-19 related deaths reached a daily rate equal to the September 11th terror attacks. Weekly unemployment claims remained higher than during the 2008-2010 recession. But never fear, a group of bi-partisan group of federal legislators came up with a solution:

Protecting corporations from lawsuits related to COVID-19.

The liability protections were part of a “super-skinny” relief package put together by the so-called “Problem Solvers Caucus” and supported by Democratic congressional leaders.

University of Wyoming Law Professor Michael Duff wrote a much better version of the blog post that was rattling around in my head on treadmill on Thursday morning. I’ve written plenty about how workers’ compensation is an inadequate remedy for COVID-19, but that it blocks efforts for workers to seek justice outside of workers’ compensation.

Duff’s points out tht more workers, particularly in the gig economy, are denied even basic employment protects workers compensation. Liability protections would take away the right of contractors or gig workers to sue for catching COVID due to corporate negligence. Duff called the proposal “treacherous” and “not civilizational.” In the final paragraph he more or less states the liability provision creates a constitutional crisis.

I agree with Professor Duff.

The constitutional crisis is that Congress wants to strip rights from essential workers. Sure, the legislation only calls for a liability shield for six months, but how easy would it before Congress to extend the shield once it’s implemented?

Maybe this sounds like a paranoid slippery-slope argument, but one of the raps on outgoing President Trump was that he violated norms with his behavior and conduct which undermined the Constitutional order. I think that that’s true. Norms were supposed to be respected with the election of Joe Biden and the return of “the adults in the room.” A bi-partisan group of self-proclaimed problem solvers defines what it means to be “the adults in the room.” Turns out the “adults in the room” don’t really respect norms either. The norm in this case is the basic ability of a person to have some access to the court system to address harm

The poor behavior of the “adults in the room” is dispiriting to say the least. Advertisers and politicians have extolled the “essential worker” throughout the pandemic. In some states, New Jersey as an example, that talk has turned into helpful action for essential workers. But hearing politicians who vote for COVID-19 liability shields celebrate essential workers rings hollow.

The fact that tort reform is part of a take or leave it deal, where the consequences of leaving it will be millions of people slipping into destitution is disturbing.

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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Anti-trust and workers’ compensation

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Anti-trust law wasn’t created just to address monopolies, it was also designed to address unfair business practices. That’s why a different type of anti-trust law could benefit injured workers

A federal judge in New York sustained a challenge mounted by a group of Democratic attorney generals to a narrow interpretation of the joint-employer rule proposed by Labor Secretary Gene Scalia.

The joint-employer rule seeks to make businesses liable for violations Fair Labor Standards Act by their franchisees. The federal judge held the Department of Labor’s interpretation of the rule was “Arbitrary and capricious.” You can read more about how federal courts view workplace regulations here.

But the reason, I am writing about this decision is to start discussing the role anti-trust law plays or could play in workers’ compensation and employment law. Put another way, this post seeks to introduce my fellow solo and small firm workers’ compensation plaintiff’s lawyers to the scholarship of Sanjukta Paul, Marshall Steinbaum, Veena Dubal and others.  While discussions of anti-trust center on the rise of the gig economy and worker classification, I think a new way of thinking about anti-trust law goes to the core issues of workers’ compensation.

What is anti-trust law

To the extent that plaintiff’s lawyers think at all about anti-trust, anti-trust is thought about as a way to maintain competitive markets. But, as scholars point out, when anti-trust law was created in the late 19th century, anti-trust was thought of a way to fight economic concentration and support fairer business practices.

The innovation of anti-trust law was that it regulates what Sanjukta Paul describes as “coordination rights.” Coordination rights are the ability of different individuals and enterprises to work towards common ends. Coordination can be cooperation among equals or it can involve one party controlling another.

How anti-trust applies in workplace law.

Going back to the example of the joint-employer controversy, the Trump administration sought to give franchisors more ability to command franchisees without being responsible for complying with wage and hour laws. By case law, this relationship is already codified in existing anti-trust law. This relationship, according to scholars, is what enabled the rise of gig economy companies like Uber and Lyft. Uber and Lyft can largely control drivers without defining them as employees and having to worry about violating anti-trust law.

Of course, workers who are classified as contractors are not covered by workers’ compensation. But the issue of worker classification in workers’ compensation pre-dates the gig economy. Issues about who is covered by workers’ compensation are as old as workers’ compensation statutes themselves.

Most states have a law like Nebraska’s statutory employer law (Neb. Rev. Stat. 48-116) Our statutory employer statute seeks to prevent employers from avoiding workers’ compensation by use of subcontractors. Our statute expressly mentions the use “artifice and schemes” to avoid liability. In other words, the drafters of Nebraska’s workers compensation laws were regulating the coordination rights of employers. 

Statutory employer statutes within workers’ compensation laws are anti-trust laws. Workers compensation and anti-trust laws developed at roughly the same time out of the same impulse to reform a newly industrializing society. It’s not surprising that workers’ compensation laws would include anti-trust concepts or would address coordination rights in a practical way.

Workers’ compensation and coordination rights

But the use of anti-trust law in workers’ compensation extends beyond employee classification issues. Employers often co-ordinate with insurers/claims administrators, nurse case managers and doctors to limit workers’ compensation workers compensation benefits for employees. I sometimes refer to these efforts as the workers’ compensation legal-medico complex. The workers’ compensation legal-medico complex is one example of entities exercising their coordination rights.

In practice the workers compensation medico-legal complex can exercise their coordination rights with impunity. Plaintiff’s lawyers have very limited success in using the civil RICO statutes in fighting these practices.

But a renewed and reformed anti-trust law could give injured workers another outlet to fight coordination between insurers, employers and medical providers. The Federal Trade Commission was created at about the same time as workers’ compensation laws. A re-oriented FTC or a state equivalent could crack down on employer-centered coordination of workers’ compensation claim management as an unfair trade practice.

However a re-orientation of anti-trust would require near political and intellectual revolution. The Epic Systems case decided by the Supreme Court in 2018 limits the ability of workers to coordinate through collective action litigation. The case also seeks to limit protected concerted activity under the National Labor Relations Act strictly to formal union activity rather than more informal collective action. Gig economy companies have also successfully used anti-trust arguments to fight efforts to allow gig workers to unionize.

I am not going to address how anti-trust evolved its anti-worker bent. I think Professor Paul does a good job of describing the intellectual and legal history of the (d)evolution of anti-trust law. Her work is worth reading by plaintiff’s attorneys. The more familiar plaintiff’s become with anti-trust concepts the more likely it is that, to quote Marshall Steinbaum, that we can open up a second front of anti-trust law in the fight over worker classification. I think anti-trust law would also be a way to make workers’ compensation work for injured workers rather than the employer-oriented legal-medico bureaucracy.

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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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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A PROblem with the PRO Act

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Image courtesy of the UAW

The House of Representatives passed the Protecting the Right to Organize or PRO Act last month. If the bill is enacted, it would make it much easier for workers to form unions.

The bill also used the worker-friendly ABC test to define employees under the National Labor Relations Act. (NLRA) The ABC test is the cornerstone of California’s Assembly Bill 5 which extends employment protections, including workers’ compensation, to gig economy workers.

I support the PRO Act. Our firm works with many unions on workers’ compensation claims. Union workplaces tend to be safer workplaces and unions give employees job security above and beyond what non-union employees have under the employment at-will doctrine.

But I don’t think the PRO Act went far enough. I believe the PRO Act should have applied the ABC test for the purposes of federal taxes like unemployment, Social Security and Medicare. I believe that for a few reasons.

One, more tax revenue to those programs would help maintain their solvency. Two, while states control who is an employee for the purposes of workers’ compensation, the fact that an employer pays taxes on an employee makes it more likely an employee will be defined as an employee. Federal tax laws can be a thumb on the scale for workers under state laws like workers’ compensation.

I think the PRO Act’s silence on Social Security and Medicare opens the door for mischief if it is enacted as drafted. Gig economy workers organized into a union without the benefit of basic social insurance programs may be forced to accept cut-rate “portable benefit” packages in lieu of standard mandated benefits like workers’ compensation. Poorly designed portable benefit plans can shift the cost of work injuries onto workers – particularly those are not covered under state workers’ compensation laws. The tech industry has collaborated with former SEIU President Andy Stern to support these types of weak portable benefit programs.

The PRO Act is DOA in the Senate. I think it is unlikely the President would sign the bill on the off-chance it did pass through the Senate. But there is an election coming up in November. It is well within the realm of reason that come next year there could be a Democratic president and a Democratic congress. Would Democrats enact something like the PRO Act if they had the opportunity next year or in 2022?  It probably depends on who the Democratic president would be.

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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GPS poses safety, legal risks to new professional drivers

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Contrary to conventional wisdom, one study shows the most dangerous distraction for drivers isn’t texting and driving, but the use of GPS navigation systems.

As driving jobs expand with rise of the gig economy and online shopping drivers, especially inexperienced drivers, may be relying on GPS navigation to the detriment of their safety of the job. Navigation devices can be a visual and cognitive distraction. The occupational hazard posed by GPS navigation brings up some important legal issues and hazards for professional drivers.

Employee classification is a major issue. Employees can collect workers’ compensation even if their own negligence caused the accident. In other words, the employee who got in an accident while distracted by their navigation system is still covered by workers’ compensation.

But it you are classified as an independent contractor, you are on your own for medical bills, lost income and permanent disability you are on your own if you are involved in accident where you at fault.

Unsurprisingly, gig economy companies like Uber and Lyft are fighting to classify their drivers as contractors. Gig economy companies are involved in a high-profile legislative fight in California that may have broad implication in other states and even at a federal level.

New employees are more likely to get injured. This is not good news for drivers in the high turnover ride hailing industry. A study of Uber drivers shows that nearly 2/3rds quit after six months and another study shows only 4 percent of drivers stay on for a year. The majority of drivers also drive for less than one year.

Ride hailing drivers may be particularly vulnerable to other distractions. Some ride hailing drivers will operate what amounts to a command center on their dashboard because they drive for multiple apps and monitor price information with separate phones.

Because of all those potential hazards to ride hailing drivers, I don’t think workers’ compensation attorneys can talk enough about misclassification of ride hailing drivers. But even drivers who are employees are vulnerable to risk from GPS caused auto accidents. Workers’ compensation only covers medical expenses and lost income from an injury. Workers’ compensation, at least in Nebraska, would not cover the cost of an auto insurance deductible for a driver who damaged their vehicle in a work injury where the employee was at-fault.

Many workers who do driving or delivery jobs also work at other jobs. Even if an injured driver is covered by workers’ compensation workers’ compensation disability benefits are only based on earnings from that employment.

For example, if an employee gets hurt in Nebraska and can’t work because of an injury on a second job where they made $150 per week, their temporary disability pay is limited to $100 per week even if that injury prevented them from doing another job where they made $600 per week. So even if the employees real loss of wages is $750 per week from an accident, they would be limited to $100 per week on a temporary basis. Nebraska law (Neb. Rev. Stat. 48-121(4)) assumes a 40-hour work week for the purposes of permanent disability, but employees can still be undercompensated for injuries on a second job – particularly if the second job had a relatively low hourly wage.

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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