Ohio State lines up to run a QB counter against Nebraska
My colleagues Paul McAndrew from Iowa and Bernard Nomberg from Alabama have blogged about the tragic but common situation of an employee who puts a work injury on private health insurance only to have health insurance deny payment because they discover the injury is work-related.
It is another example of injured workers getting squeezed. But in the right circumstances an injured worker can squeeze back— a counter-squeeze if you will.
Nebraska also prohibits employers from retaliating against employees for claiming workers’ compensation benefits. Retaliation is an adverse action related to the terms and conditions of employment. Denying payment of wages, in the form of health insurance, because the employee has filed a workers’ compensation claim should be retaliation.
So employers denying workers’ compensation and health insurance benefits can find themselves facing a wage and hour and retaliation case. Of course, these types of cases are a lot more complicated than described in the last two paragraphs.
In order for the counter-squeeze to work, it is best to have an employer who is at a minimum self-insured for the purposes of health insurance and ideally self-insured for health insurance and workers’ compensation. Tyson, Crete Carrier and Werner Enterprises are large Nebraska employers who fit into the latter category. Self-insurance is important because it allows the employee to link the decision to deny benefits to the employer. In theory you can still make a counter-squeeze work when outside insurance companies are involved, but that turns the case into a civil conspiracy case that can be more costly and difficult to prove.
Wage and hour cases also require detailed proof of medical bills and existence of a valid contract for payment of benefits. If an employee appears to have misrepresented how an injury happened, an employer may be able to fire an employee regardless of any retaliatory motive on their part. But the employee who at first blush may have “screwed up their case” by paying for their workers’ compensation injury with their private health insurance, may be able to salvage a good outcome in their work injury case.
Nebraska appears to be on the verge of repealing part of last year’s successful ballot measure – to raise the state minimum wage from the federal rate of $7.25 per hour to $9 per hour by 2016 – by creating a lower youth minimum wage. I agree with arguments against a youth minimum wage stated by opponents such as state Sen. Adam Morfeld. But this attack on Nebraska’s wage and hour laws concerns me for other reasons.
Many young people work in home health or as salespeople. Federal-wage law exempts home health aides and so-called outside salespeople from minimum wage and overtime laws. Nebraska law has no such exemptions, so home health aides and salespeople are covered by Nebraska’s minimum-wage law, while they are not covered by federal law. If Nebraska legislators can roll back wage rates in our wage and hour laws, it is possible that they might also create more exceptions to our minimum-wage laws.
Besides minimum-wage concerns, young people, especially students, may be working in unpaid internships that violate both state and federal minimum-wage laws. I recommend students (and employers of interns) read an excellent blog post by the U.S. Department of Labor Wage and Hour Division about when interns should be paid. Students (and their employers) should also remember that unpaid internships may violate Nebraska wage and hour laws as well.
Though the Nebraska Wage and Hour Act does not allow punitive damages like the Fair Labor Standards Act, Nebraska law does allow for attorney fees and has a criminal penalty for wage violations not found in federal law. This criminal penalty can force quick settlements from employers if the liability for unpaid wages is clear. If an employee can clearly show they are owed an amount of wages, the employer may be forced to pay a penalty under the Nebraska Wage Payment and Collection Act. This penalty is also an incentive for employers to settle wage claims when liability for unpaid wages is clear.