Tag Archives: Tyson

Holding meatpackers accountable for COVID-19 cases with public nuisance litigation

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The JBS Swift plant in Grand Island, Neb. is at the center of a COVID-19 outbreak in that community. (Photo credit to KTIC Radio)

The New York Times reported on a public nuisance lawsuit filed against Smithfield Foods for COVID-19 exposure created by a pork processing plant in Milan, Missouri.

What’s novel about the public nuisance suit is that it sues Smithfield for its effect on the surrounding community, not its employees.

Meatpacking plants are a hotbed of COVID-19 exposure in small cities and rural areas across the country. In Nebraska, workers at JBS Swift in Grand Island and Tyson in Lexington have high rates of COVID-19 exposure. Reports trace nearly 40 percent of COVID-19 exposures in Grand Island to JBS.

The Missouri case against Smithfield describes how fast line speeds help spread COVID-19. Workers and their advocates have long expressed concerns about line speed in meat packing plants. Line-speed is related to widespread joint and muscle injuries in packinghouses.

In my job, I spend a fair amount of time in both Grand Island and Lexington litigating against JBS and Tyson. Because of that experience, I’ve watched in anger/horror as COVID-19 tears through these communities. In my view, the same indifference that Tyson and JBS show about joint and muscle injuries has been shown about COVID-19.

Skirting the exclusive remedy of workers’ compensation

Part of my anger about COVID-19 in Lexington and Grand Island goes to the difficulty of recovering workers’ compensation benefits for COVID-19. Workers’ compensation laws provide little deterrent for packinghouses to limit COVID-19 exposure. Even if an employee can prove on the job exposure, workers can collect limited benefits from workers’ compensation. Workers’ compensation benefits are limited because employees are supposed to collect them without regard to fault.

Limited in benefits in exchange for not proving fault is at the heart of the so-called grand bargain of workers’ compensation. Workers compensation benefits are generally the exclusive remedy employees have for workplace injury and illnesses.

But a public nuisance claim skirts the problems with workers’ compensation laws. A public nuisance claim sues the packinghouses not for how they treat their workers, but for how their treatment of their workers effects the surrounding community. Exclusive remedy means that the workers can only sue their employers for a workplace injury or illness under workers’ compensation. Workers can only collect limited benefits from workers’ compensation.

Public nuisance is a legal theory that the packinghouses know well. Environmental advocates successfully used the tactic against a Smithfield subsidiary in North Carolina. I hope worker safety advocates obtain a good outcome in the Missouri case. I hope these suits spread to plants in other states.

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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Denied workers’ compensation and health insurance for a work injury? You might have a counter

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Ohio State lines up to run a QB counter against Nebraska

My colleagues Paul McAndrew from Iowa and Bernard Nomberg from Alabama have blogged about the tragic but common situation of an employee who puts a work injury on private health insurance only to have health insurance deny payment because they discover the injury is work-related.

It is another example of injured workers getting squeezed. But in the right circumstances an injured worker can squeeze back— a counter-squeeze if you will.

In Nebraska health insurance benefits are considered wages. Nebraska allows employees to receive attorney fees when they sue for unpaid wages under what is called the Nebraska Wage Payment and Collection Act.  So an employer who is denying medical benefits under workers’ compensation, should not be able to deny payment of those bills under private health insurance.

Nebraska also prohibits employers from retaliating against employees for claiming workers’ compensation benefits. Retaliation is an adverse action related to the terms and conditions of employment. Denying payment of wages, in the form of health insurance, because the employee has filed a workers’ compensation claim should be retaliation.

So employers denying workers’ compensation and health insurance benefits can find themselves facing a wage and hour and retaliation case.  Of course, these types of cases are a lot more complicated than described in the last two paragraphs.

In order for the counter-squeeze to work, it is best to have an employer who is at a minimum self-insured for the purposes of health insurance and ideally self-insured for health insurance and workers’ compensation. Tyson, Crete Carrier and Werner Enterprises are large Nebraska employers who fit into the latter category. Self-insurance is important because it allows the employee to link the decision to deny benefits to the employer. In theory you can still make a counter-squeeze work when outside insurance companies are involved, but that turns the case into a civil conspiracy case that can be more costly and difficult to prove.

Wage and hour cases also require detailed proof of medical bills and existence of a valid contract for payment of benefits. If an employee appears to have misrepresented how an injury happened, an employer may be able to fire an employee regardless of any retaliatory motive on their part. But the employee who at first blush may have “screwed up their case” by paying for their workers’ compensation injury with their private health insurance, may be able to salvage a good outcome in their work injury case.

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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Tyson not liable for “donning and doffing” pay at Lexington, NE plant

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A Nebraska jury decided yesterday that Tyson did not wrongfully withhold pay from its workers for time putting on and taking off safety gear at its Lexington, NE plant. The suit against Tyson’s Lexington, NE plant is one of many against Tyson and the meatpacking industry in general for pay for time putting on and taking off gear.  There is currently a suit involving Tyson’s Madison, NE plant pending trial.

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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Wage and Hour trial for Tyson Lexington, NE plant starts May 16th

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Workers at the Tyson Fresh Meats plant in Lexington, Nebraska will get their day in court starting on Monday to determine whether they were wrongly denied pay for taking off and putting on protective safety gear.

The main issue in this case is whether time spent putting on and taking off protective gear at the beginning and end of break and meal times benefited Tyson or the workers. If the jury determines the time spent donning and doffing mainly benefits  Tyson, the employees will win.  Tyson’s argument is that the time spent donning and doffing gear was during break time so the time primarily benefited the employee. Continue reading

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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