Tag Archives: Nebraska

Worker safety vs. civil rights laws ?

Posted on February 18, 2019 by Jon Rehm

A bank teller window protected by bulletproof glass

Recently I noticed that the two bank branches where I bank have implemented security measures that would improve workplace safety for their employees. One bank branch put in a clear glass wall to protect tellers while the other bank branch is locked and requires customers to call at the door to be let in to the bank.

The two banks deserve credit for increasing employee safety, but does increased security at banks raise public accommodation issues?

“Banking while black”, a shorthand phrase describing the denial of service of African-Americans at financial institutions, has drawn media attention recently. Is there a way to reconcile two important interests – workplace safety and public accommodation or civil rights laws — that might be in conflict?

At first glance, I don’t see why increased security at banks should conflict with public accommodation laws.

How security at banks promotes workplace safety

I have been writing about retail worker safety for a few years and bank tellers are particularly vulnerable in bank robberies. A study by the Indiana Department of Labor found that glass barriers were one effective way to protect retail workers, like bank tellers, from violence. Even if a bank teller is fortunate enough to avoid physical injury in a robbery, they are still vulnerable to mental trauma. Mental injuries are particularly troubling because bank tellers, like all workers besides certain workers involved in public safety, have no coverage for purely mental injuries under Nebraska workers’ compensation law.

Workers could bring a negligence case which could be part of the impetus for banks putting in increased security measures at their branches.

But security measures can have downsides. Anybody who has been delayed at a TSA checkpoint can attest to that fact, but security can also raise public accommodation issues.

Public accommodation laws and “banking while black”

African-Americans in Ohio, Florida and Washington have reported being unable to complete financial transactions at banks due to their race. A 40-something professionally dressed white male, like me, shouldn’t have a problem being let into a locked bank branch. It might be different if I were a person of color.

In Nebraska being hassled or refused service by a financial institution on the basis of race would run afoul our state’s civil rights laws. It would also run afoul federal civil rights laws as well as potentially leading to cases for breach of contract and interference with contractual rights.

In the Ohio, Florida and Washington cases, physical entry into the bank branch has not been an issue. The issue has been the inability to complete a transaction despite meeting the requirements of the financial institution such as having an account and or having proper identification. For now, it doesn’t appear that physical security at a bank has been used to deny service based on race. The problem of banking while black appears to be one of applying procedures differently to the detriment of African-Americans based on their race. I hope that lessons learned by banks in cases about applying procedures differently to African-Americans can be implemented into how banks apply heightened security at their branches.

Three “mega” issues with “mega” claims

Posted on February 14, 2019 by Jon Rehm

An increase in driving jobs and use of mobile devices has lead to more “mega” workers’ compensation claims.

The cost of workers compensation insurance and the total number of work injuries has been in a long-term decline as industrial jobs decrease and service jobs increase.

But even as overall claims and costs decline, the workers’ compensation insurance industry is focusing on higher value “mega” claims involving serious or fatal injuries. These claims often involve auto accidents which are made more prevalent by the 1) increase in delivery jobs through online commerce and 2) the expansion of mobile technologies that turn vehicle into mobile offices. (I drafted the first two paragraphs of this post on my IPhone in my car at a car wash)

The increased focus on so-called mega claims will likely bring increased attention to litigation over 1) when an injury arises out of and in the course and scope of employment 2) employee fault and so-called safety violations and 3) fights over how much an insurer/employer should be paid back when they paid workers’ compensation benefits for an injury that was the fault of a third-party. In legalese, this is called a subrogation interest.

Arising out and in the course and scope of employment

For an injury to be covered by workers’ compensation, it has to take place within the time and spatial boundaries of work and the injury has to be caused by a risk related to employment. At least under Nebraska law, the issue depends on the facts of the case. The Nebraska Court of Appeals recently heard oral arguments in a workers’ compensation case involving the survivor of a sheriff’s deputy who was killed in a car accident on his way home from work.

Normally such work would not be covered under workers compensation under the so-called going and coming rule. But in this case the sheriff’s deputy was talking to another deputy who was covering the next shift about a work-related event when accident occurred. The family of the employee argued that since the employee was talking on their cell phone about work with a coworker when the accident happened, that the accident should be covered by workers compensation. In that case the trial court disagreed.

I agree with the family. Mobile technology is changing the scope of what constitutes the workplace. It also changes expectations for when an employee is expected to be working. Covering employees injured offsite and/or off the clock while using mobile technology by workers compensation adapts workers compensation to a modern workplace.

Safety violations

Using mobile devices in moving vehicles poses safety risks. Employers have the discretion to make reasonable safety rules. In some cases, violation of a safety rule gives employers to paying workers compensation in Nebraska. Many other states have similar rules. In a recent Virginia case, serious injuries to a bus driver injured in a motor vehicle accident were found not to be covered by workers’ compensation because the driver was violating an employer rule requiring that he wear a seat belt. A death or serious caused by a worker who was texting or emailing while driving in violation of company rules on would be vulnerable to being dismissed in Nebraska.

Third Party cases

Many cases involving auto accidents on the job involve the negligence of a third party that is neither the fault of the employee or employer. In such a case, the employer has a right to be paid back for workers’ compensation benefits out of any recovery from that third party minus some attorney fee. This is called a subrogation interest. Nebraska law allows a court to equitably determine the amount of the subrogation interest.

But Nebraska courts have taken a view of equitable subrogation in third party cases that is favorable to employers. The fact that an employer deceased the value of the personal injury case by aggressive defense of the workers’ compensation claim does not given courts the authority to reduce an employer’s subrogation interest. Nebraska courts have also held that giving employers robust repayment rights in third party cases effects the purpose of the workers compensation act because it encourages the prompt payment of benefits.

Bill would expand job search exemption for laid off workers receiving unemployment

Posted on February 11, 2019 by Jon Rehm

Some employers don’t want their laid off employees looking for work

Some unemployed workers could be exempted from job search requirements under the Nebraska Employment Security Act if a bill being considered by the Nebraska legislature passes.

LB 428 introduced by State Senator Curt Friesen, would give the Commissioner of Labor the authority to exempt some workers on highway and street construction jobs from job searches as a condition of receiving unemployment benefits. The bill would expand the exemption from job search requirements for workers on layoffs who have an expectation of returning to work.

Nebraska requires laid off workers to make five job search contacts per week and one contact a day as a condition for receiving unemployment benefits. Businesses support the reduction in unemployment taxes brought about by policies such as tough job search requirements. But those job search requirements have had unintended consequences.

In another state with robust job search requirements for unemployed workers, Wisconsin, many employers in the construction industry complained about the job search requirements. They argued that the job search requirements made it harder to retain employees who traditionally collect unemployment benefits while being laid off over the winter.

Requiring workers on a seasonal layoff to look for work gives other employers the chance to “recruit” employees. Construction employers in Nebraska frequently complain of a worker shortage, so employee turnover encouraged by job search requirements would make that problem worse.

If you spend any time reading HR Twitter you know that “talent” recruitment and retention is frequently discussed. Setting aside the obvious solution of increasing wages, HR folks like to talk about creative ways to retain employees. Hence perks like ping pong tables in break rooms and casual dress codes.

Traditionally employers were usually the only way to obtain good health insurance, so workers stay in their jobs to keep their health insurance even if the working conditions are poor.

There are also more coercive talent “retention” tactics such as non-compete agreements that are being increasingly absued by employers to the point that even some Republicans are introducing bills to address the issue on a federal level.

In addition to reducing taxes, tough job search requirements are supposed to increase the size of the labor market by discouraging receiving unemployment benefits. But policies that may benefit business interests as a whole, like job search requirements to receive unemployment benefits, may not benefit particular employers who may struggle to hold onto valuable employees.

Federal legislation may make it easier for injured workers to change jobs

Posted on February 7, 2019 by Jon Rehm

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..

Bill would eliminate workers’ compensation squeeze

Posted on February 4, 2019 by Jon Rehm

An Omaha senator seeks to limit or end the time many injured workers in Nebraska receive no workers’ compensation benefits due to insurance companies unfairly interpreting Nebraska case law about when payment for temporary disability benefits end and when payment for permanent disabiliy begins.

LB 526 introduced by State. Senator Mike McDonnell would add language to Neb. Rev. Stat. §48-121 that would continue temporary disability until the later of a) any permanent disability as measured by permanent impairment for a scheduled member disability has been determined or, in the event of a claim payable under a loss of earning power basis when a loss of earning power evaluation is complete or b) 30 days after the employee has been given notice of termination.”

The bill also requires employers to provide copies of evidence used to end temporary disability and give the employees the right to a medical examination at their employer’s expense in certain circumstances when temporary disability payments are halted.

Our firm strongly supports this new bill. Roger Moore wrote a good post in 2015 about the human cost of the temporary-permanent squeeze. Last year I wrote a post about how the squeeze came about through case law.

The argument underlying the squeeze is that temporary disability ends when a doctor states a worker has plateaued medically. That means temporary disability benefits stop. But permanent disability has needs to be ascertained before permanent disability benefits start. This could mean waiting for a permanent impairment rating or it could mean waiting for an FCE, having a doctor endorse the results and then having a vocational counselor determine disability. This can take weeks or even months. If an employee isn’t working that means weeks or months without income. I think allowing insurers to exploit the gap between temporary and permanent disability is an incorrect reading of the law because doesn’t effectuate the beneficent purpose of the Nebraska Workers’ Compensation Act to pay benefits in a timely manner to injured workers.

I also like the notice provision of the legislation. Once an injured worker starts receiving temporary disability benefits, they have some expectation that they will continue which would arguably create a constitutional property interest in continued receipt of those ongoing workers’ compensation benefits. Ending those benefits with no notice or explanation would arguably violate due process.

Critics of the legislation may point out there are cases involving multiple scheduled members that can also be paid on a loss of earning power basis which could cause uncertainty about the period of when temporary disability should continue. In such cases I believe that prompt payment of scheduled member impairments helps to eliminate the gap issue. However impairment ratings under the AMA 6^th may undercompensate injured workers and be less likely to address the gap issue.

Our firm encourages our clients and others in Nebraska to contact their state senators and tell them to support LB 526. You can find out who your state senator is here and find their contact information here.

Nebraska looks to limit debt collection in workers’ compensation claims

Posted on January 31, 2019 by Todd Bennett

Legislation in Nebraska seeks to protect injured workers’ from aggressive debt collection tactics

When an employer or insurer denies a workers’ compensation claim, debt collectors can add additional insult to injury by attempting to collect on unpaid medical bills in the claim. This problem for injured workers is particularly serious in Nebraska.

LB 418, introduced by State Senator Machaela Kavanaugh of Omaha, would solve this problem.The bill states ‘No collection agency shall attempt to collect a debt if a case is pending in the Nebraska Workers’ Compensation Court and the debt is alleged to be subject to’ the workers’ compensation law pertaining to fee schedules and payment requirements by employers.”

This is a needed respite for injured workers in Nebraska for many reasons. First, the legislation solves the problems of civil courts not delaying collection cases where the unpaid bills are part of a workers’ compensation cases. Collection actions in civil court about workers’ compensation cases can also raise jurisdictional questions which would be clarified by this legislation.

Second, assuming an injured worker prevails in obtaining an Award in their disputed workers’ compensation case, if they have already been sued and forced to pay the full price of the medical charges in addition to paying the court filing fees and attorney fees to the collection attorneys, they cannot then recover their money paid to the collection agency. This proposed bill will rectify this situation and help injured workers alleviate the stress and financial crisis they face.

Finally, medical debt collection practices are very aggressive in Nebraska because of inexpensive filing fees in county court. An investigation by ProPublica in 2016 and 2017 showed Nebraska courts handle nearly 80,000 collection actions involving amounts as low as $60. In similarly-populated New Mexico where court filing fees are higher, only 30,000 debt collection suits were filed. One of the biggest collection agencies, Credit Management of Grand Island, was responsible for nearly 30,000 of those lawsuits. Debtor’s exams are quite common. If an injured worker misses the debtor’s exam, they can face being jailed. According to Pro Publica, one Nebraskan was jailed over missing an debtor’s examination on a $100 debt.

Our firm encourages our clients and others in Nebraska to contact their state senators and tell them to support LB 418. You can find out who your state senator is here and find their contact information here.

Why Lincoln and Omaha probably won’t be following NYC in a minimum wage for Uber and Lyft drivers

Posted on January 24, 2019 by Jon Rehm

New York City recently implemented a $17 per hour minimum wage for drivers for riding hailing apps like Uber and Lyft. I wouldn’t expect similar measures exapnding wage and hour and/or workers’ compensation to gig economy workers in Omaha or Lincoln for two main reasons.

Local governments in Nebraska have their powers limited by the state

The first hurdle to a city minimum wage or city workers’ comepnsation laws in Lincoln or Omaha is the state constitution. Nebraska courts have held that only the state can regulate the employee-employer relationship unless the legislature authorizes a city or county to do so. The state has authorized cities and counties to draft civil rights ordinances. Omaha and Lincoln have human rights commissions similar to the Nebraska Equal Opportunity Commission.

But the Legislature has not authorized local governments to implement their own minimum wage or workers’ compensation laws. No such legislation was introduced to that effect this year in Nebraska. In neighboring Missouri, the Missouri legislature reversed an attempt by the City of St. Louis to increase the minimum wage in that city above the state minimum wage. In short, I believe it would be unlikely that Nebraska would authorize local governments to implement their own workers’ compensation and wage laws in the near future.

Even if cities in Nebraska could enact wage and hour and workers’ compensation ordinances, it seems unlikely that cities would do so to cover gig economy workers.

There doesn’t appear to much political will among cities in Nebraska – even in Democratic-controlled Lincoln – to expand employee protections to ride hailing drivers. In fact, the Lincoln City council voted in 2017 to exempt Uber and Lyft drivers from the same licensing requirements as taxi drivers.

In fairness, Lincoln had a long history of being poorly served by a taxi cab monopoly. Complaints about regulatory fairness from former monopolists fell on deaf ears. But Lincoln’s taxi monopoly was broken in 2012 before the rise of ride hailing apps. Lincoln and Omaha lack an organized voice for drivers like they have in New York City. Without such a voice, worker classification issues among urban professional drivers will likely continue to be unheard at a state and local level in Nebraska.

Workers compensation basics: Nebraska workers can pick their own doctor to treat a work injury

Posted on January 21, 2019 by Rod Rehm

Injured Nebraska workers have an absolute right to choose their surgeon if surgery is needed. Nebraska workers compensation law provides injured workers to choose their own treating doctors unless Nebraska employers get a written waiver of that right. Many employers try to control doctor choice without following the rules and getting a written waiver. The requires use of an approved Form 50 with this language.

Under the Nebraska workers’ compensation law, you may have the right to choose a doctor to treat you for your work-related injury. You may choose a doctor who has treated you or an immediate family before this injury happened. Immediate family members are your spouse, children, parents, stepchildren and stepparents. The doctor you choose must have records to show that past treatment was provided. Your employer may ask the person who was treated to give permission so that doctor can verify past treatment.

If you want to choose your doctor, you must tell you employer the name of the doctor you choose. Do this as soon as possible after your employer gives you this notice and before getting any treatment unless it is emergency medical treatment. Once you tell your employer the name of the doctor, you may not change unless your employer agrees or the Nebraska Workers’ Compensation Court orders a change.

If you do not choose your doctor, your employer has the right to choose the doctor to treat you. The employer may also choose the doctor to treat you if you or your family member does not give permission so your employer can verify past treatment by the doctor you chose.

Even if a worker under Nebraska law waives choice of treating doctor they can still choose their surgeon, if one is needed. This right can bot be waived. It is absolute. An insurance company or employer is telling you that you need to see “their doctor” or that you can’t see your doctor to treat for a work injury, you should contact a lawyer.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: Nebraska

Worker safety vs. civil rights laws ?

Three “mega” issues with “mega” claims

Bill would expand job search exemption for laid off workers receiving unemployment

Federal legislation may make it easier for injured workers to change jobs

Bill would eliminate workers’ compensation squeeze

Nebraska looks to limit debt collection in workers’ compensation claims

Why Lincoln and Omaha probably won’t be following NYC in a minimum wage for Uber and Lyft drivers

Workers compensation basics: Nebraska workers can pick their own doctor to treat a work injury

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