Tag Archives: National Labor Relations Act

Do Employees’ Forced Smiles At Stores Cause Mental Distress?

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Most Nebraskans and Iowans can probably sing a jingle from a regional grocery chain that promises “a helpful smile in every aisle.” But helpful smiles may have a hidden cost for employees.

A summary of 95 medical studies showed that forced cheerfulness by employees lead to psychosomatic issues like trouble sleeping, headaches and chest pain as well as decreased job satisfaction. This so-called emotional labor has also been linked to aggression in the workplace.

Retail and service industry employees are usually required to be cheerful to encourage customers to return. These pressures are likely becoming more acute as certain sectors of retail employment have declined and online giant – and burgeoning monopoly – Amazon has barged into the grocery business with their acquisition of Whole Foods.

Unfortunately, U.S. employment laws are not equipped to deal with the day-to-day mental strains placed on retail workers. Workers compensation laws generally do not compensate purely mental injuries. Workplace bullying or harassment is only legally actionable if the harassment is severe or pervasive and motivated by an unlawful factor like race, religion, nationality, sex, disability, etc. 

But employees have the power to work together, even if they aren’t in a union, to address these conditions through protected concerted activity under the National Labor Relations Act. Recently a group of employees at a Target in rural Virginia banded together to help fire a manager who had been sexually harassing employees. Granted sexual harassment may be different than forcing an employee to be cheerful when dealing with the public, but by working together employees can address unreasonable rules and requirements by an employer.

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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A High-Tech Update on a New Black Friday Tradition

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OUR Walmart has been protesting working conditions at Wal-Mart on Black Friday since 2011. This year, OUR Walmart will forego protests and instead promote the WorkIt app, which uses IBM’s Watson technology to inform Wal-Mart employees about their rights at work.

Walmart is warning employees against using the app. If Walmart were to terminate an employee for downloading the app, this would likely be an unfair practice under the National Labor Relations Act, and it would likely be unlawful retaliation under Nebraska law as well.

The positives of WorkIt

WorkIt uses technology to allow workers to push back against management. Traditionally, this has been the role of labor unions. But the application essentially cuts out that middleman. Organized labor has had great difficulty organizing at Wal-Mart, but if the app serves some of the main functions of a union, it is a benefit for Wal-Mart employees.

Nebraska’s junior senator, Ben Sasse, decided that he would moonlight as an Uber driver in Nebraska a few Saturdays ago. In a press release, he touted the benefits of the “disintermediation” of the workforce. Disintermediation is a fancy term for cutting out the middleman. Uber cuts out the middleman by connecting drivers directly with those needing a ride through an app. Of course, Uber thinks that the user of the app can cut out the need for things like fair-employment protections, unemployment insurance and workers’ compensation coverage for their drivers as well. Most employee advocates have concerns about this relationship. If nothing else, the WorkIt app shows that technology is a tool to expand workplace protections even as the use of technology erodes workplace protections.

Possible downsides to WorkIt

Apps and other computer programs are only as good what the programmers input into the programs. Wal-Mart employees probably do know Wal-Mart policy, but other employee-protection laws, especially workers’ compensation laws, vary from state to state. The WorkIt app may not be able to help people with state-specific questions.

Furthermore, Wal-Mart isn’t under any obligation to follow its own policies in a non-union workplace. Failure to follow those policies could be evidence of wrongful conduct, but it isn’t unlawful per se. In short, knowing company policies can be helpful, but management has wide discretion in how it interprets those policies. That’s where having a union steward or representative is helpful in a dispute with management, as the steward will have a better idea of how those policies have been interpreted in the past.

Finally, while an app is helpful, it somewhat undercuts the idea of collective or concerted activity, which forms the basis of unionization. Instead of reaching out to other employees about common concerns, just relying on an app could reinforce the strategy of taking individual grievances to Wal-Mart through what they call their “Open Door Policy.” Apps can reinforce the atomized, overly individualized relationship that people have with technology and their employers.

But in the wake of the recent elections, some veteran union organizers are calling for a radical rethinking of how to organize workers. WorkIt may be part of that new tool kit to organize workers in the 21st century. Apps are already part of workers organizing for rights. In China, workers are using the WeChat app to organize independent unions. Hopefully U.S. workers will start using apps like WorkIt and existing apps to protect themselves in the 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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Is it Illegal to Discriminate Against Me on the Job Because of My Accent?

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Contrary to popular opinion, many immigrants work in professional and white-collar jobs. The explosive growth of immigration to the United States means that more immigrants will work in white-collar jobs in the United States. Since white collar jobs often require verbal communication, immigrants employed in white-collar professions and their employers will increasingly face the question of whether it is legal to discriminate on the basis of accent. 

Most federal and state courts that have addressed the issue believe that it is illegal for employees to discriminate based on accent if that discrimination is tied to nationality. Courts have even gone so far as to state that nationality and accent are intertwined, which means that they take such discrimination seriously. However, courts understand that employers have an interest in clear verbal communication. So what steps should you take if you think you are being discriminated against because of your accent? 

  1. Apply for a promotion for which you are qualified: Discrimination is only actionable if the company takes some action against you. One so-called adverse action is a failure to promote. If you are a trusted and valued employee, a company will often give you a reason why you were not promoted. If this reason is related to your accent, you can often get a decision maker to say as much. Legally, this is considered direct evidence of discrimination.
  2. If possible, reach out to other foreign-born employees in your workplace: If other foreign-born employees are being discriminated against for the same or similar reasons, it makes sense to work with them, as it can show a pattern by the employer. Also, when employees work together to fight discrimination, they are not just protected by civil rights laws, but they are also protected under the National Labor Relations Act.
  3. If possible, contact an employment attorney in your area before you decide to take action:  Every situation is different, and laws vary from state to state. A lawyer can give you tips about how to potentially build a case, can give you advice about actions and tactics to avoid, and can advise you about any legal deadlines that might apply to your potential case.

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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