Tag Archives: OSHA

A double-standard on workplace violence?

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Employment laws in the United States are skewed extremely for the benefit of employers. Workplace violence is a prime example. Consider two examples about violence in the workplace

Take the convenience store clerk working overnight in a store that has been robbed before. There are risking their job by refusing to work at an unsafe job. In most places, there is no requirement for protective barriers. In most states, they can’t collect workers’ compensation for mental trauma without a physical injury.  In most states, their sole remedy for injuries from workplace violence is workers compensation, which may provide very limited compensation.

An employee who may be under stress and/or suffering from mental illness may make an off-hand remark or unserious remark about violence. That person can be fired for largely without repercussions in the name of safety.

So in many respects, the threat of violence, even if vague or taken out of context. in the workplace is taken more seriously than actual violence. It’s easy to square this seeming contradiction when you realize employment laws in this country are written to benefit employers. The concept of employment at-will, created by a legal academics in the mid-to-late 19th century, and implemented by judges is the root cause of the imbalance of labor-management relations in this country.

So what can be done to protect employees from actual workplace violence, aside from outright abolishing employment at-will?

OSHA standard on convenience stores

I think OSHA should implement nationwide safety standards for convenience stores. OSHA has been pondering this idea since the 1990s. I know from my informal discussions with local OSHA staff, that this idea is popular with OSHA staff. A rule would improve safety in convenience stores.

I also think a formal rule from OSHA would make any retaliation case stronger under Neb. Rev. Stat. 48-1114. I believe that the OSHA general duty clause would give convenience store workers a way to bring a retaliation claim for reporting unsafe working conditions. But management often argues that vague references to OSHA regulations don’t comprise a protected activity. An OSHA rule would give convenience store and other retail workers a clear legal leg to stand on when reporting workplace violence.

Pass the PRO Act

The vast majority of the time, a union contract provides more on-the-job protections than any government regulation or anti-discrimination law. The House recently passed the Protecting the Right to Organize or PRO Act, that it would make it easier to organize unions. This would be a boon for workplace safety for all workers.

The same troll army of freelance writers, literal neo-liberal shills, who whined about AB5 in California are now attacking the PRO Act. I support the PRO Act. My only concern about the PRO Act is that it gets used by Uber, Lyft, Door Dash, et al. to implement half-a— “portable benefits” schemes under the guise so-called “sectoral bargaining.”

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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Don’t bet on workplace safety

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Decent people reacted with shock and disgust to news of allegations that managers at a Tyson meatpacking plant in Waterloo, Iowa were making bets about the number of workers who would catch COVID-19.

The allegations were included in a wrongful death claim filed by the family of a worker who allegedly died from COVID exposure at the plant. Iowa allows workers to get around the limited compensation available under workers’ compensation if the employee can prove their injury was caused by the gross negligence of another employee.

If true, managers betting on employee COVID-19 exposure would likely be evidence of gross negligence. So besides another example of man’s inhumanity to man, what does the COVID-19 betting pool tell us about workers’ compensation and workplace safety?

Good alternatives to the exclusive remedy of workers’ compensation

Iowa is fairly unique in allowing for negligence suits for work injuries. In Nebraska, and most other states, workers compensation is the only way that employees can be compensated for a work injury.  Lawyers and judges use the term the terms “exclusive remedy rule” or just “exclusive remedy” to describe workers’ compensation laws  The so-called grand bargain of workers’ compensation is that workers don’t need to prove negligence by their employer to be compensated for a work injury. In exchange they receive limited benefits.

But workers’ compensation has proven largely inadequate to COVID-19 due to difficulties in linking COVID-19 exposure to the workplace. While some cases are being prosecuted by employees they are hard cases to win that are only feasible in cases of death or serious injury.  Benefits in death cases also rely on proving a formal marriage relationship and or evidence of supporting dependents. Not all injured workers fall into that category.

Worse, the exclusive remedy rule has largely ruled out legal workarounds to the exclusive remedy rule.

However, Iowa’s allowance of tort cases, with higher potential payouts in cases of work injuries and deaths from COVID seems like the best way for seriously injured workers and their families to hold employers accountable. And bluntly, it’s not that great of an option.

Some readers may ask, isn’t OSHA, Occupational Safety and Health Administration, supposed to regulate workplace safety? If workplaces were safe there wouldn’t be a need for lawsuits. But OSHA sidelined itself early in pandemic

How OSHA sidelined itself in the pandemic

In April, OSHA announced it would not enforce record keeping requirements for COVID-19 for employers such as packinghouses. I believe that this sent a signal that OSHA wouldn’t take the pandemic seriously. OSHA later reversed the policy and even issued a few citations. But OSHA’s slowness to respond to COVID-19 cost lives both on the job and in the communities around COVID-19 hotspot workplaces.

OSHA continues to refuse to specific rules about workplace safety and COVID. Sure, once the Biden administration finally takes over and gets going, OSHA might issue some standards. But even in a Democratic administration, the Department of Agriculture, who also regulates meatpacking plant may seek to weaken workplace safety measures implemented by the Department of Labor. For example, while the Department of Labor did some innovative enforcement of meat processing plants in the Obama administration, the Department of Agriculture allowed some packers to speed up processing lines. Faster lines correlate with more injuries.

Why local media is matters in covering workplace safety, part 2

The story about the COVID pool at Tyson was broke by a local journalism outlet in Iowa. This is the second straight week, I’m writing about a workers’ compensation issue first reported on by local reporters. Local reporters are essential in covering workers’ compensation because workers’ compensation is a state law. Also, many unsafe workplaces exist well outside journalist-rich cities like New York City and Washington DC. It’s important to have good reporters in places like Iowa and Nebraska to tell the stories of workers there.

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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Why local media matters to workers’ compensation and workplace safety

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A story in the Seattle Times about injury rates at Amazon fulfillment centers shows how a state workers’ compensation agency and enterprising local reporters can focus attention on workers compensation.

Seattle Times reporter Benjamin Romano reported that injury rates at Amazon fulfillment centers had increased nearly four-fold over 4 years from 4 per 100 to 15 per 100 employees. Romano’s reporting was based on a public report from the State of Washington’s Labor and Industry, L & I, department which administers and regulates workers’ compensation in Washington state. L& I sets workers compensation rates in Washington State.  Per the Seattle Times, Amazon warehouses will pay a higher rate for workers’ compensation than meatpacking plants in that state.

Workers’ compensation laws are state laws. Washington state is fairly unique in having a state-run workers’ compensation system. Nebraska allows employers to obtain private workers’ compensation coverage.

So, as Amazon expands in Nebraska, what leverage will the Nebraska Workers’ Compensation Court have over Amazon?

First of all, for now, First Reports of Injury, are public records. Any interested party can look at those reports. But of course those reports don’t always correlate with an injury and they are based on what an employer reports.

Major employers with high injury rates also like to self-insure. The Nebraska Workers Compensation Court must approve applications to self-insure on an annual basis. Amazon being denied the ability to self-insure or losing the ability to self-insure would be a newsworthy event. However many high-injury employers avoid the scrutiny of self-insurance by insuring with high deductible plans.

But if a tree falls in a forest and no one is there to hear it, does it really make a sound? I bring up this old question to discuss the gradual disappearance of local journalism. If news happens, but there are no reporters to cover it does news exist?.  Lee Enterprises has made Nebraska a one newspaper state. Lee has nearly halved the number of reporters at Omaha World-Herald in the last two years. Any long time readers of the Lincoln Journal-Star or Omaha World-Herald know from first-hand experience how the news content in those papers has thinned out over the years.

Why does the decline of local media effect workplace safety.  In the Obama administration, OSHA began a policy known as “regulation by shaming” or publicizing fines against companies who violated workplace safety rules. A study by an economist at Duke University found one press release by OSHA had the same effect as 210 inspections. But if there isn’t a strong local media to report on and amplify these stories, then the regulation by shaming strategy loses effectiveness.

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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“Wildcat strikes”, workplace safety and public sector workers

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The Lincoln Education Association (LEA), the union that represents teachers at Lincoln Public Schools, moved quickly and clearly to discourage a rumored mass sick out by teachers in Lincoln late last month. The sick out was meant to protest working conditions related to the COVID-19 pandemic.

Walking off-the-job in mass or mass call-ins without union approval or without a union period is sometimes known as a “wildcat strike.” But while the LEA was correct in stating a coordinated sick out by teachers is illegal in Nebraska, most private sector employees have the right to walk off the job due to safety conditions under certain circumstances.

When are wildcat strikes permissible?

Wildcat strikes are permissible under the National Labor Relations Act, the Labor Management Relations Act and Occupational Health and Safety Act. While the standards for what is permissible vary by law, a worker contemplating organizing a mass walkout should be able to show a serious and imminent harm from working conditions. Employees in unionized workplaces actually may have less ability to organize wildcat strikes as labor law discourages that practice in unionized workplaces.

Individual refusal to do an unsafe job

The Nebraska Fair Employment Practices Act could protect an individual employee from retaliation for refusing unsafe work or opposing unsafe working conditions. Arguably, the act would also protect organizers of wildcat strikes. In some cases, reporting a workers’ compensation injury can also fall within the Nebraska Fair Employment Practices Act. While workers also common law protections against workers’ compensation retaliation, bringing the case under the Nebraska Fair Employment Practices Act can entitle workers to awards of attorney fees and front pay not available in common law cases

The spread of strikes and sickouts

Mike Elk of Payday Report has written extensively about strikes and other work stoppages related to COVID-19. One of these labor actions includes a sick out by teachers in Boise, Idaho. Unfortunately, workers don’t have a lot of good options to protect themselves from unsafe conditions related to COVID-19. OSHA has been criticized for lax enforcement. Workers’ compensation laws aren’t designed to compensate workers for infectious diseases, even assuming those laws cover infectious disease at all. Finally, even though workers’ compensation is an inadequate remedy for COVID-19, the so-called exclusive remedy of workers’ compensation usually prevents workers from bringing cases directly against their employers about working conditions.

If you have a union, get involved in your union

Some workers are still fortunate enough to enjoy union representation. If you are one of those workers, join your union and get involved in your union. Unions make the workplace more democratic and allow for employee input, but unions work best when workers get involved. One of my pet peeves is listening to clients or potential clients telling me “the union doesn’t do anything.” Some unions are better than others, but even a weak union gives most employees better benefits and more job protections than they would be entitled to otherwise as an at-will employee.

Public sector labor law reform in Nebraska?

Public sector employees cannot strike in Nebraska. Nebraska law is clear on that issue unlike more ambiguous laws in West Virginia, Oklahoma and Arizona that had teacher strikes in 2018.  Nebraska law also holds teachers and other employees can’t engage in work slow downs or sickouts. In fact it is a crime to even advocate or advise public sector employees on workplace strikes and slowdowns and to support strike funds. While Nebraska laws on public sector strikes may be vulnerable to some First Amendment challenges, public sector strikes and work slowdowns remain a very risky proposition for participants.

So will Nebraska reform public sector labor law to harmonize with federal law or to make it less punitive towards public sector workers protesting unsafe working conditions? I think that’s a doubtful proposition. The rules of the Nebraska Unicameral require broad support for legislation. For example, expanded protections for essential workers were killed by what amounts to a filibuster by a bloc of right-wing senators.

Nebraska is also one of the few states that hasn’t adopted charter schools which are opposed by teachers’ unions. I’m not sure that the Nebraska State Education Association, the union representing teachers in Nebraska, would want to risk alienating support for public schools with proposals that could seem radical to many Nebraskans, including teachers.

But ultimately increased labor militancy among teachers and other public sector workers could help preserve the role of bargaining for public sector employees. In 2011, some in the business community sought to weaken public sector unions. That effort ultimately failed. I think a newly energized labor movement among teachers makes it more likely that future efforts to weaken public sector unions in Nebraska will fail as well.

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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Local reporting of packinghouse COVID-19 cases nixed. Why workers’ comp. reporting may not fill the information gap

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The JBS Swift plant in Grand Island, Neb. Governor Pete Ricketts refused a request from local health officials to shut down the plant (Photo by KTIC Radio)

News Channel Nebraska reported last week the State of Nebraska would no longer report COVID-19 exposures from individual meatpacking plants.

Five Nebraska counties with major meatpacking plants – Dakota, Dawson, Colfax, Hall and Saline, ranked in the top 31 of highest per capita exposure to COVID-19, the New York Times reported last Thursday.

Nebraska Governor Pete Ricketts cited confidentiality concerns as the reason for the order.  But, Ricketts decision seemed geared towards deflecting widespread criticism of meatpacking houses for their role in spreading COVID-19. Pro Publica reported last week that Ricketts refused a request from public health officials in Grand Island to shut down a JBS Swift plant over COVID-19 concerns.

Workers’ comp. and COVID-19 exposure reporting

But while public official will no longer report COVID-19 exposure by meatpacking house, those plants are still required to report possible COVID-19 exposures to the Nebraska Workers’ Compensation Court. Those so-called First Reports of Injury are public record. But those records may not be accurate for two reasons.

First, many companies like to under-report work injuries. This practice pre-dates the COVID-19 pandemic. Employers under-report work injuries as a a a way to suppress claims. In Nebraska, the penalty for claims suppression is minor.

Secondly, OSHA guidance appears to exempt meatpackers from having to log COVID-19 exposure as an occupational injury. Standards for logging an injury for OSHA and reporting it to the Nebraska Workers’ Compensation Court tend to blur. Because of the guidance from OSHA, I suspect companies will under-report work injuries to state workers’ compensation courts.

Workplace safety and public health

The prevalance of COVID-19 in packinghouse towns has lead the general public to connect public health and workplace safety. The issue of workplace safety will need all the attention and public support it can garner. It appears as if corporate American wants to protect companies for COVID-19 exposure litigation. I believe this immunity could cover workers’ compensation.

A public nuisance suit filed against a Smithfield Foods plant in Missouri highlighted the link between workplace and public health. In the suit, community members sued Smithfield for the role it played in spreading COVID-19 in the area surrounding the plant.

But last week, a federal judge dismissed the case and ruled that any challenges to Smithfield safety practices would have to be filed with OSHA. In a blog post, University of Wyoming Law Professor Michael Duff called the decision a “mood point” indicating a potential “unreflective, anti-liability fervor enveloping the Great Reopening”.

I agree with Professor Duff. The unwillingness of courts to push the envelope for workers’ rights predates the COVID-19 pandemic. State and federal elections are coming up in six months. For once issues like workplace safety may be at the forefront of the discussion during campaign season.

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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OSHA guidance on COVID-19 reporting could make it harder to prove workers’ compensation claims

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Bloomberg Law reported that the federal Occupational Safety and Health Administration (OSHA) will not require non-medical and non-first responder employers to report possible COVID-19 exposures in the workplace.

OSHA’s decision on limiting reporting of potential work-related COVID-19 exposure could make it harder for workers to have COVID-19 exposure covered by state workers’ compensation laws. It will likely also make it more difficult to track exposure to the virus.

Injury reports and proving job-related exposure to COVID-19 through circumstantial evidence

Even if OSHA does not require most employers to report possible COVID-19 exposure, employers would still have to report possible COVID-19 exposures on the job to state workers’ compensation courts and agencies. However, many employers effectively use federal standards for recording an injury for reporting injuries to state workers’ compensation agencies. OSHA’s ruling may lead employers to under report possible COVID-19 exposures to state agencies.

In a blog post last week, Thomas Robinson wrote that many workers exposed to COVID-19 on the job will have to rely on circumstantial evidence to have COVID-19 exposures covered by workers’ compensation. But if employers aren’t required to log potential COVID-19 exposures, then it will be more difficult for employees to build their workers’ compensation cases with circumstantial evidence of other potential COVID-19 exposures in their workplace.

In theory employees could rely on state workers’ compensation reports to build a circumstantial case. But the lack of a federal reporting requirement may mean that employers don’t report potential COVID-19 exposure to state authorities.

Difficulties of tracking COVID-19 through medical records and billing

State workers’ compensation laws may provide another way to track the effect of COVID-19. Medical providers tend to ask about the cause of a medical condition or injury for the purposes of medical billing.  Knowing which COVID-19 cases were billed to workers’ compensation would be one way to track occupational exposure to the virus.

But there are problems with this approach. Doctors usually need to rely on patient history in order to determine whether an injury or illness is related to work. A worker may be unaware of how they contacted COVID-19.  Evidence that other workers were potentially exposed to COVID-19 may help doctors make that determination.

However, getting additional information to medical doctors and asking them to link an injury or illness to work duties is time consuming and often expensive. Sometimes a doctor will expressly conclude that an injury or illness was caused by work in their medical records. But with the advent of electronic medical records, it is less common to find causal statements in the body of a medical records. Unhelpful medical records will probably make it more difficult for workers’ compensation lawyers and public health authorities to investigate the causes of COViD-19 exposure.

COVID-19 and a two-tiered approach to workplace safety

I am disturbed by OSHA’s decision to limit reporting of COVID-19 by employers. The reason behind the decision is that many employers complained it’s difficult to determine if COVID-19 is caused by work. I agree that it will be difficult to cover COVID-19 cases under state workers’ compensation laws. But, filing an OSHA 300/301 report or a First Report of Injury in Nebraska isn’t an admission that an injury or illness is work-related.

Workplace safety advocates rightfully believe that this move by OSHA will make it more difficult to track COVID-19 exposure in the workplace to the detriment of retail, delivery, warehousing, transportation and food processing employees who are vulnerable to COVID-19 exposure.  In his blog post about proving up COVID-19 cases, Tom Robinson wrote passionately about how first responders and health care employees were getting more workplace safety protections than retail, delivery, transportation and food processing employees.

The two-tiered approach to workplace safety predates the COVID-19 pandemic. Lowly paid retail employees are routinely subjected to violence on the job, but they usually aren’t eligible for workers’ compensation benefits for strictly mental injuries or “mental-mental” injuries. By contrast, first responders are eligible for mental-mental benefits and a growing number of states are giving first responders a presumption that mental injuries are work-related. The COVID-19 pandemic is throwing these pre-existing divisions into starker contrast.

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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Who do rules about texting and driving really protect?

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OSHA came out with guidelines about mobile device use while driving by employees. So why do I have mixed feelings something that most people would think is a good idea?

I believe texting and emailing while driving is a terrible idea and a clear safety hazard. But, management and insurers can use rules about mobile device use while driving to deny workers’ compensation claims.

Management and insurers can use rules about mobile device use while driving to deny workers’ compensation claims. They can argue either that mobile device use by an employee by driving is a deviation from employment duties. That may be difficult to argue if a travelling employee was using a mobile device while driving for work purposes.

In the alternative the employer may affirmatively allege that mobile device used was a safety violation that would disqualify them from receiving workers’ compensation. This is a difficult burden for an employer to meet. OSHA suggests that employers set up a “disciplinary action system” for workers who violated driving safety rules. Having written rules against a practice can make it easier for an employer to defeat a workers’ compensation claim by arguing an employee was willfully negligent.

Generally, workers compensation laws are favorable to workers who are injured while travelling, this known as the travelling employee doctrine or presumption. But in fairness to the insurance industry, this legal doctrine developed before the use of mobile phones.

In fairness to OSHA, their guidance on mobile phone usage was also meant to protect workers from being forced to use mobile devices while driving. Those who work and live in relatively remote areas know the term “windshield time” to describe long car trips. There is intense pressure to use that time productively. There is a strong temptation to text or email while driving even though you know the hazards.

The guidelines may give employees some protections against retaliation if the refuse to text or email while driving. But anti-retaliation laws are only as good as the court cases that interpret them and some courts have recently began to curtail protections afforded by those laws.

I speak from first-hand experience. I do a lot of long-distance driving for work.  If areas like rural Nebraska were better served by air, rail and bus service, I wouldn’t need to drive so much. The same goes for many workers in states like Nebraska. But thanks to transportation deregulation those of us who travel to and within rural areas are stuck in our cars during business hours.

Texting and driving creates risks for other motorists in addition to the drivers who text and drive. But the law already punishes drivers who cause accidents through use of their mobile devices. Drivers who text and drive can be punished criminally and be held accountable in civil cases. Accountability for employers who create dangerous working conditions is mostly limited to state workers’ compensation laws.

I believe the risk of distracted driving is apparent to any adult. Why does OSHA need to issue guidance?  I suspect it has something to do with my point about employers using rules against cellphone usage while driving to deny workers’ compensation claims.

But while OSHA is issuing guidelines about the obvious risk of texting and driving, the United States Department of Agriculture is overlooking the obvious risk of overuse injuries to packinghouse workers. The USDA in the Trump and Obama administrations have allowed meat processors to speed up lines to the detriment of workers. I hope if there is a new presidential administration next year, that administration will use its rule-making power to make workplaces safer and not give employers ways to dodge their responsibilities under state workers’ compensation 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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UPS far from the only employer under-reporting workers’ compensation claims

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Fatima Hussein wrote a well-reported story for Bloomberg Law about UPS discouraging or under-reporting workers’ compensation claims.

This practice is sometimes known as claims suppression. Claims suppression is a common issue in workers’ compensation. Lawyers from coast to coast, Tara Reck in Washington state and Jeff Blackwell in Alabama, have recently written about the topic.

Washington state, to their credit, formally recognizes the concept of claims suppression in their law and identifies the practice. In Washington, employers guilty of claims suppression can be civilly fined. Employees can also apply to their workers’ compensation board to extend statute of limitations if claims suppression lead them not to file a claim.

Claims suppression in Nebraska

Though Nebraska doesn’t formally recognize the term claim suppression in our law, we have similar remedies to Washington state for the practice. Employers can be prosecuted for the misdemeanor of not filing a first report of injury with the Nebraska Workers’ Compensation Court. The failure of an employer to file a first report of injury also automatically extends the two-year statute of limitations to file a petition in the Nebraska Workers’ Compensation Court.

In my view the penalties for claims suppression in Nebraska are weak. I am unaware of any times where an employer was prosecuted for claims suppression in Nebraska.

Fighting claims suppression in the civil justice system

But I am a skeptic of criminalizing workers’ compensation — which at its core is a contractual issue between an employee and their employer. My view is that employees are more vulnerable to prosecution than employers. Since workers’ compensation is stigmatized, workers’ compensation fraud by employees is viewed as a variant of welfare fraud. Welfare fraud is prosecuted aggressively in many jurisdictions.

I believe that the civil justice system is a better forum for wrongs done in a commercial transaction. But many barriers exist to employees being able to bring civil claims for workers’ compensation claims suppression by their employers. The first barrier is the fact that workers’ compensation laws are the exclusive remedy for workplace injuries. For example, in Nebraska an employee can’t bring a bad faith action against their workers’ compensation insurer because their remedy for bad faith is the penalty and fee statute under Neb. Rev. Stat. 48-125.

The employment at-will doctrine and claims suppression

A related barrier to bringing civil claims for claims suppression, is the growing reluctance of courts to allow employees to sue their employers. I believe this is because of the overwhelming power to the doctrine of the employment at-will doctrine.

Claims suppression cases are often brought as retaliation cases. Earlier this year, a federal court in Pennsylvania narrowly interpreted Pennsylvania’s prohibition on workers’ compensation retaliation to rule against an employee. That case turned on the court finding the receipt of workers’ compensation benefits wasn’t actually claiming workers’ compensation benefits, so the employee wasn’t being retaliated against when they were fired after their work injury. The court’s narrow construction of Pennsylvania’s anti-workers’ compensation retaliation is based on the importance of the employment at-will doctrine.

Arguably in cases where an employee doesn’t file a claim because of claims suppression, then a court can find the employee isn’t being retaliated against because they never filed a claim in the first place. Recognizing a civil action for claims suppression requires more legal creativity than many courts are willing to give an injured employee.

But just because bringing a claim for claims suppression is difficult doesn’t mean that some lawyers aren’t trying. The Bloomberg article quotes Paul Taylor of the Truckers Justice Center, a nationally recognized expert on retaliation claims under the Surface Transportation Amendments Act (STAA) retaliation claims. Workers’ in industries covered under the STAA could bring suppression claims under the STAA. These claims have a more favorable burden of proof for workers’ than typical civil rights claims.

The Bloomberg story also mentions cases for workers’ compensation that have been brought under California state law. But, California state law is considered to be one of the most friendly for employees in the nation. I question what weight a Nebraska court would give to a ruling made under California law.

Ultimately claims suppression will probably have to be addressed by state legislatures as workers’ compensation laws are state laws. State legislatures can increase the penalties for claims suppression and create private causes of action for workers’ compensation claims suppression by statute. If federal minimum standards for workers’ compensation get momentum in Congress, stronger anti-claims suppression laws should be part of those standards.

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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