Tag Archives: retaliation

Reversing OSHA Rules Will Undercut Workplace Safety

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President Trump recently signed a Congressional resolution revoking an Obama administration OSHA rule that required employers to retain records of work injuries for five and that prohibited retaliation against workers for reporting injuries. The revoked OSHA rule would have also limited drug testing of employees who reported injuries.

Debbie Berkowitz of the National Employment Law Project and a former OSHA official criticized the action because limiting the amount of time an employer must retain records about injuries because it doesn’t provide enough information to identify recurring safety issues.

At least in Nebraska, employers are required to file First Reports of Injury with the Nebraska Workers Compensation Court. The information contained in those reports serves a similar function to OSHA logs and would allow workers, unions, attorneys and or regulators to identify recurring safety problems. Those reports are also public records. I recently testified against an insurance industry supported bill in the Nebraska legislature that would have made those reports confidential records.

The recently revoked OSHA rule also would have prohibited retaliation against employees who report OSHA violations. Nebraska already has anti-retaliation laws that protect employees who claim workers’ compensation benefits that would cover many cases where an employer would have to record an injury for OSHA. My opinion is that the OSHA General Duty clause which states that employers have a duty to provide a workplace free of recognizable hazards provides additional anti-retaliation protections to Nebraska employees through our state whistleblower statute. But the revocation of the OSHA anti-retaliation rule may weaken those protections.

The OSHA record keeping/anti-retaliation rule was revoked through the Congressional Review Act. You can read more about that law works here. Congress and President Trump have also revoked an executive order that would have prevented employers who violated fair employment laws from obtaining federal contracts. You can read more about that rule here.

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.

This entry was posted in Workers' Compensation, Workplace Injury, Workplace Safety and tagged , , , , , , .

Six Questions You Should Answer Before You Become a Whistleblower

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Whistleblowers have helped expose some of the biggest corporate scandals of the 21st century, including Enron and the Bernie Madoff scandals. Whistleblowers usually expose themselves to a real personal risk by opposing wrongdoing. These risks often include getting fired from their job. If you are thinking about blowing the whistle on illegal conduct at work, here are six questions you should ask yourself:

1.         Are you really opposing unlawful or illegal activity? Lawyers who defend companies against whistleblower claims often may paint whistleblowing as mere disagreement about management style or philosophy. As a matter of law, a whistleblower also must have good faith or honest belief that they are opposing illegal conduct. If you are thinking about bringing a whistleblower complaint, it would be a good idea to do a little research. Whistleblowers.gov is a great resource for the various industries that are covered under the Occupational Safety and Health Administration whistleblower statutes. Most experienced employment attorneys are also willing to do some free consultation for prospective whistleblowers as to whether they are opposing illegal conduct.

2.         Does someone in upper management at your company know about your complaints? This can be intimidating, but in my experience, you will have a stronger case if you bring up your concerns to someone higher up in management than your direct supervisor or worksite manager. This puts the company on notice about the unlawful conduct, and it bolsters your credibility as someone who was concerned enough about the potentially illegal conduct that they reported it to someone within the company who could act on it. Likewise, if someone with authority at your company is on notice of the potentially illegal conduct and that person doesn’t take action, that can bolster your possible case. Sometimes firms will have an “ethics” hotline or will refer you to human resources. I don’t think it hurts to report through those channels, but I think you should also report the unlawful conduct to someone who has the actual authority to change the practice that you are challenging.

3.         Can you frame your complaint as a business problem and suggest solutions to the problem of unlawful conduct and be reasonable in how you report the misconduct? I cribbed this idea from a post from the excellent SkloverWorkingWisdom blog written by attorney Alan Sklover. All things being equal in an employment law case, the party who is most reasonable is going to win. This fact tends to disadvantage employees, because it’s hard to keep a level head when you are being mistreated or being asked to participate in unlawful conduct at work. But do your best to be level headed and objective when you bring up your complaints to management. Like the point in the last paragraph, if the employer ignores your practical solution to the potentially unlawful conduct, then you have bolstered your possible case.

4.         Will other employees will join you in your complaints? Whistleblowers tend to get tarred as tattletales. If co-workers are joining you in your complaints, the case becomes more credible. If you make a legitimate complaint as a group, you also gain protection of the National Labor Relations Act for engaging in protected concerted activity, as well as under any whistleblower law that you might be bringing a case under.

5.         How strongly can you support your claims? To win any whistleblower retaliation case, you must have evidence to prove your case. In most cases, this requires written evidence that often takes the form of emails that implicate possible wrongdoers. If a case gets into litigation, then in theory, such documents must be disclosed. That does not always happen in practice. Additionally, having documents will help a lawyer determine if you have a possible claim and how strong your possible claim could be.

Employees may have concerns about revealing confidential documents and/or be concerned that their employer may take legal action against them for revealing company information. Many whistleblower laws protect certain types of information from being deemed confidential. Employers are also somewhat reluctant to act against whistleblowers, because this can invite more retaliation litigation. But potential whistleblowers should be aware of possible legal liability for disclosing company information, so an employee should be very careful about how they choose to share company information. Attorney-client communications, even those communications involving prospective clients are confidential. By consulting with an attorney, a prospective whistleblower can get some guidance as to whether they are risking legal liability by disclosing information.

Evidence can also take the form of witness testimony, which is why it is helpful if you have a group of employees opposing potentially unlawful conduct.

6.         Are you willing to change jobs or relocate? Even if what you think is a valid whistleblower complaint is merely a dispute with a manager over something that it isn’t illegal, the fact for you is that if you are doing something or working in an environment that you don’t like, you are almost setting yourself up to fail. This is probably even more true if you have a valid whistleblower claim. Studies show that it is easier to find a job while you are still employed. Even with anti-discrimination laws, employers have broad discretion to fire employees under the “employment at-will” doctrine. The underappreciated flip side of employment at-will for employees is that they can quit without cause or notice. If you are in a dysfunctional or even hostile work environment, it’s smart to take advantage of the ability to quit freely if you have another job lined up.

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.

This entry was posted in employment law and tagged , , , , , .

Fault Doesn’t Matter in Workers’ Compensation, Except When It Matters

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fingerpointingWorkers’ compensation law is founded on a compromise where employees give up the right to sue their employers for negligence in order to receive relatively certain benefits. What plaintiff’s lawyers like me don’t often say is that workers can generally collect benefits if they share some – or even all of the blame – for a work injury.

But the idea of fault has not been entirely erased from workers’ compensation law. Our colleagues at The Jernigan Law Firm in North Carolina recently discussed in a blog post how employer violations of safety rules could lead to increases in benefits, while employee violation of safety laws could lead to decreases in benefits.

Nebraska does not increase or decrease benefits based on safety-rule violations like North Carolina, but Nebraska does allow employers to avoid paying benefits if they can prove a worker’s willful negligence or intoxication was the cause of the work injury. This is a difficult burden for an employer to meet, but employees can still lose cases based upon willful negligence.

If an employer is going to claim a worker was willfully negligent because of a safety violation, a court will consider five factors as to whether an employee was willfully negligent. These factors are

  1. whether the employer had a reasonable rule designed to protect the safety and health of the employee
  2. whether the employee was on notice of the rule
  3. whether the employee understood the danger involved by violating the rule
  4. whether the rule was kept alive by bona fide enforcement and
  5. whether the employee had an excuse for the rule violation.

Whether an employee willfully violated a safety rule is a question of fact that depends on the circumstances and the credibility of the parties testifying in a case.

Nebraska law holds that ordinary negligence by a worker is not a bar to benefits. But an employer can delay benefits under the argument that but for the employee’s negligence, the employee’s injury could have been accommodated. That is an open question under Nebraska law. But if there is no question that an employee cannot work, and the worker is fired for negligence in connection with a work injury, the employer should still have to pay benefits.

Intoxication is often grouped with willful negligence under Nebraska law. It is very difficult for an employer to deny benefits based on intoxication causing the work accident. Another issue related to intoxication is when an employee tests positive for drugs after a work accident even if there is no evidence of intoxication at the time of the injury. A positive drug test will not bar an employee from receiving workers’ compensation benefits in Nebraska, but it could delay lost time or temporary disability benefits if an employer argues that temporary restrictions could be accommodated but for the employee’s termination for cause.

If an employee is not at fault for an injury, there may be other ways for an employee to be compensated. If an injury is caused by the negligence of a third party, the employee can sue that third party. If an employer retaliates against an employee for reporting an unsafe working condition that causes an injury, then the worker could pursue a retaliation case. Employees should also be skeptical if they are wrongfully blamed for a work accident, as this could be a form of retaliation. Another possible form of retaliation is when an employee is fired for having a work injury as a probationary employee or having too many injuries, regardless of fault.

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.

This entry was posted in Safety Rules, Safety violations, Workers' Compensation, Workplace Injury and tagged , , , , .

What Does this Improper Medical Treatment Sanction from OSHA Mean?

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BoheadFor the first time ever, the Occupational Safety and Health Administration recently sanctioned a Pilgrim’s Pride chicken processing plant for providing improper medical treatment for employees suffering from overuse injuries. While the hazards of meatpacking work to employees is common knowledge and the packing industry is frequently sanctioned for unsafe work practices, the sanction against Pilgrim’s Pride for failing to provide medical care to their workers in Florida indicates OSHA is opening a new front in the battle for a safe workplace.

While OSHA’s sanctioning Pilgrim’s Pride for providing inadequate medical care to their injured workers is novel, their action is consistent with law that states access to prompt and appropriate medical care is crucial to pursuing a workers’ compensation claim. OSHA sanctioned Pilgrim’s Pride for failure to make timely and proper referrals to specialists for orthopedic injuries when employees sought treatment at company first-aid or nursing stations. According to OSHA, delays in treatment can lead to permanent injuries.

The fact that OSHA deems inadequate medical care to be a violation of its regulations could also mean that employees have a statutorily protected right to oppose inadequate medical care. In Nebraska, this would mean that employees could possibly sue their employers under the Nebraska Fair Employment Practices Act. Celeste Monforton, a professor of public health at George Washington University, noted in her post that employers use company health clinics not only to delay treatment but to discourage employees from seeking medical care. Some employers go so far as to discipline employees who do not get permission from their employer to seek outside medical treatment. A recent case in an Illinois federal court stated such policies were illegal.

While Nebraska does not have any case law similar to Illinois about such policies, there is a strong argument to make that such policies would be illegal under Nebraska law and under the law of any state that prohibits retaliation against employees for filing workers’ compensation claims. Policies that require notification and permission to seek medical treatment from employers could also run afoul of Nebraska’s laws allowing employees to choose their own doctors. One Nebraska court has hinted that the right to pick a doctor is a legally protected activity.

Monforton also pointed out that Pilgrim’s Pride could be committing medical malpractice by failing to provide proper care and having nurses treat injured employees without proper medical supervision.

However, packinghouses have some reason to believe that they are immune from medical malpractice suits filed by their employees against their employee health nurses. The legal shorthand for this is called the exclusive remedy. In practice, this means that an employer who provides medical treatment in a negligent manner to an employee who is treating for a work injury can only be sued in workers’ compensation court.

Of course, there are some ways around the exclusive remedy for medical care. The first exception would be that if employee health was outsourced. This would allow an employee to sue that provider directly and could also allow for a civil conspiracy or civil RICO claim.

There may also be other exceptions as well. For example, Nebraska has a Meatpacking Industry Workers Bill of Rights that states that workers employed at covered meatpacking houses have a right to a safe workplace and the right to seek benefits, including workers’ compensation. If an employer does not provide adequate medical care or provides negligent medical care, that could certainly violate the public policy behind the Meatpacking Industry Workers Bill of Rights and warrant a tort case against the packinghouses under the public policy of the state of Nebraska.

Jon Rehm to Speak on Retaliation at NSBA Seminar on Friday

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Shareholder Jon Rehm will present on whistleblower and retaliation law

Firm shareholder Jon Rehm will present on whistleblower and retaliation law to about 40 other employment lawyers at the annual Nebraska State Bar Association’s annual Labor and Employment Law Seminar. Rehm will present on this topic with Mark Fahleson, a prominent and respected employment defense attorney.

“Preparing for this seminar has crystallized for me the importance of employees acting as soon as possible if they think they have been retaliated against in the workplace. The Nebraska Fair Employment Practices Act provides strong protections against retaliation, but employees need to act promptly to pursue those rights,” Rehm said. “Nebraska law favors employees who file a complaint in court or with the Nebraska Equal Opportunity Commission within 300 days of when they were fired or forced to quit.

“The main reason that you want to file a retaliation compliant or charge within 300 days is that an employee can be awarded attorney fees and front pay if they can bring a retaliation complaint under the Nebraska Fair Employment Practices Act.”

However, employees who fail to file a charge or complaint within 300 days may have a legal way to address retaliation as well.

“Nebraska courts have held that certain activities, like filing a workers’ compensation claim or opposing some criminal activities, give employees the right to sue their employer for wrongful termination. This is called the public policy exception to employment at will. These cases have a four-year statute of limitations. You can’t win attorney fees or front pay in these cases, but you can win emotional distress damages and economic damages as well. “

Though the public policy exception cases may not allow employees to collect as much in damages, sometimes they are the only remedy available for a worker, Rehm said.

“The Nebraska Fair Employment Practices Act only applies to employers with more than 15 employees. So if you work for a small employer, you can’t bring a case under that act, but you can bring it under the public policy exception. The Nebraska Fair Employment Practices Act also only applies if you oppose the illegal or unlawful conduct of your employer, not your co-workers. Under the public policy exception, you can actually bring a case for opposing the illegal or unlawful conduct of your co-workers.

“The other lesson that became evident for me in preparing for this presentation is how retaliation can seem straightforward on the surface but can be incredibly complicated. Preparing for this seminar has given me the chance to reflect on over 10 years of representing employees in retaliation cases.”

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.

This entry was posted in employment law, Firm News and tagged , , , , .

Do I Have a Wrongful Termination Claim?

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wrongful termination claimAssuming you do not have an employment contract, you can only claim wrongful termination if the firing was motivated by certain unlawful reasons. Unlawful reasons include discrimination based on sex or gender – this includes sexual harassment and pregnancy – as well as race, religion, nationality and disability. In certain places and in certain situations, sexual orientation discrimination can also be unlawful. Disability in this context will often mean any serious or chronic health condition you have. Disability discrimination can also mean that you are taking care of someone with a disability.

You also cannot be discriminated against by your employer for certain activities on the job. This is commonly referred to as retaliation. One of these activities is taking extended leave under the Family and Medical Leave Act (FMLA) for your own or for a loved one’s medical condition. Other common protected activities include opposing unlawful discrimination; filing a safety complaint; filing a workers’ compensation complaint; complaining of pay practices; or complaining about other illegal activities. If you are a government employee, you might also have some claims based on constitutional law.

Essentially, not all terminations are unlawful. But if your situation fits into the categories described above, then be sure to contact an experienced employment attorney. In addition, it is wise to ask for advice about applying for unemployment, even if there’s not a wrongful termination 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.

This entry was posted in discrimination, employment law, Wrongful Termination and tagged , , , , , , , , , , , , .

Employee Rights Hurt by Supreme Court Decisions

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United_states_supreme_court_buildingEmployee rights in the workplace took a step backward with the Vance and Nassar decisions made by the U.S. Supreme Court. So what does this mean in concrete terms for employees?

Vance: The main takeaway from Vance is that employees must tell upper management and human resources about workplace harassment. This has been federal law in the Court of Appeals for the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) and the 8th Circuit (Nebraska, Iowa, North Dakota, South Dakota, Minnesota, Missouri and Arkansas). In order to sustain a workplace harassment claim under federal law, employees must now be able to show that management knew about harassment and that management failed to take effective action against the harassment.

Nassar: Nassar made it more difficult to prove retaliation under federal law. In the 5-4 majority decision written by Justice Samuel Alito, the court wrote that it was concerned about the increase in retaliation claims filed in the EEOC and the potential for “frivolous litigation.” The effect of this case is that even more retaliation cases will be decided by judges under summary judgment instead of being decided by juries.

However, just because it is harder to bring a discrimination or retaliation case under federal law doesn’t mean that an employee can’t bring a case under state law that could be more favorable to the employee. But employees pursuing wrongful termination cases in state court should be aware that state court judges oftentimes follow federal court judges in interpreting state fair-employment laws.  State court judges might find the Supreme Court’s concerns about “frivolous” retaliation suits to be well founded.

I think Justice Alito was off base in his concerns about “frivolous” retaliation where employees who are about to get fired file complaints in order to preserve their job or set themselves up for a wrongful termination lawsuit. Any competent employee-rights attorney knows that retaliation suits are difficult to win. I turn down about 9 out of 10 people who call my office who claim they were wrongfully terminated. Wrongful termination suits are costly and time consuming. I am not going to invest time and money in a suit where I will likely get dismissed and possibly face financial sanctions under court rules and also possibly be opened up to paying costs to the prevailing employer under federal fair-employment law. I am doubly suspicious of employees who are fired shortly after they file discrimination or other claims. Employers know that if they fire someone after filing some sort of complaint that it appears to look bad. But courts will uphold that reason if they had a legitimate reason to fire the employee. In other words, the employee who knows they are skating on thin ice and then files a complaint is going to lose a wrongful termination case. The decision in Nassar won’t stop disgruntled employees from filing claims with fair-employment agencies, it will just make it more difficult for employees with legitimate wrongful termination claims to obtain justice.