Tag Archives: Tyson

Don’t bet on workplace safety

Posted on by

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.

This entry was posted in Uncategorized and tagged , , , , , , .

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

Posted on by
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.

This entry was posted in Uncategorized and tagged , , , , , , , .

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

Posted on by

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.

This entry was posted in Nebraska, retaliation, Wage and Hour, Workers Compensation and tagged , , , .

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

Posted on by

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.

This entry was posted in Withholding Pay and tagged , .

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

Posted on by

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.

This entry was posted in Donning and Doffing, Safety Gear and tagged .