Tag Archives: unemployment

How COVID-19 complicates workers’ compensation claims

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COVID-19 (coronavirus) is disrupting life for everyone. If you were hurt at work before the pandemic hit, your life has been disrupted doubly. Here are some ways how COVID-19 is complicating workers’ compensation cases for injured workers.

Delays in medical treatment

I’ve heard several reports that physical therapists and orthopedic doctors are limiting appointments and delaying procedures because of the virus. So even if an insurer or claims administrator has accepted your claim and approved treatment, you may have to wait for treatment.

Some of this delay may not be bad for workers if temporary disability benefits are being paid along with medical benefits. In 15 years of practice, I’ve seen employers and insurance companies force employees to return to work sooner and sooner. The delays in medical treatment created by COVID-19 may give some employees more time to heal from their injuries.

FMLA

But on the flip side, delays in medical care will likely force some employees to lose job protected under the Family Medical Leave Act. (FMLA) While FMLA protections were expanded under the CARES Act, those expanded protections don’t give any additional job protected leave to employees who were hurt on the job if it wasn’t related to COVID-19.

Undermining doctor choice

In Nebraska, employees have the right to pick their own doctor to treat their work injury. These doctors are often primary care doctors. Of course during a pandemic, it is harder for an injured worker to see a primary care doctor and have a primary care doctor fill out necessary paperwork for a workers’ compensation case.

Unscrupulous employers may use the unavailability of a family doctor to steer an injured worker to an employer-friendly occupational medicine clinic. This tactic pre-dates the coronavirus, but expect the pandemic to provide a new talking point for human resources and workers’ compensation bureaucrats to manipulate medical care in workers’ compensation cases.

The gears of the workers’ compensation bureaucratic complex have not stopped grinding during the pandemic. Genex, who contracts with insurance companies to micromanage medical care for injured workers, wrote a blog post last week heroically portraying one of their nurse case managers overcoming the resistance of a treating doctor and COVID-19 to return an employee back to work. (Assuming they had a job to return to in the first place.)

But if insurance companies and their minions can play the “corona card”, so can injured workers. Injured workers have the right to exclude nurse case managers from examination rooms. I would suggest injured workers’ ask nurse case managers to observe “social distancing” and stay out of cramped examination rooms.

Loss of health insurance in denied claims

Thanks to firms like Genex, many employers prematurely quit paying workers’ compensation benefits. This often forces employees to pay for medical treatment related to work injuries with their health insurance. But this plan could go awry if employees lose health insurance benefits due to a layoff.

Under the law, employers are supposed to continue health coverage under COBRA. Injured workers may also be able to sign up for health insurance under the Affordable Care Act. But COBRA coverage is too expensive for most employees and even ACA coverage can be too costly for many. Employees should see if they are eligible for unemployment under the CARES Act. Employees could help pay for health insurance with the additional $600 per week unemployment benefit on top of regular weekly benefits and extended weekly benefits available under the CARES Act. But even with increased unemployment benefits, injured workers may have to make difficult financial decision about pursuing medical care.

Previous posts about coronavirus/COVID-19

Navigating a workers’ compensation claim amid mass layoffs and economic uncertainty” – March 30, 2020

What workers should know about coronavirus and workers’ compensation” – March 23, 2020

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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Navigating a workers’ compensation claim amid mass layoffs and economic uncertainty

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Skyrocketing unemployment and economic uncertainty due to the coronavirus is delivering another load of fear to already anxious injured workers. Fears about how the sudden downturn in the economy can affect a workers’ compensation claim are legitimate fears.

So, what happens to workers’ compensation claims when an employer closes or lays off workers in mass or goes bankrupt? What happens when a workers’ compensation insurer becomes insolvent? How does a mass layoff or plant closing affect a workers with already an already accepted workers’ compensation claim?

Bankrupt employer

The worst-case scenario is a bankrupt employer. While employers are required to carry workers’ compensation insurance, financially unstable employers tend to carry cheap high deductible insurance that shits the cost of an injury away from an insurer onto an employer. Bankruptcy can stay the payment of workers’ compensation benefits for an injured worker.

An injured worker with a bankrupt employer needs to contact an attorney. An injured worker is a creditor of a bankrupt employer and the law tends to favor creditors who file first. A lawyer can also go to court and sometimes force an otherwise solvent insurer to pay workers’ compensation benefits for a bankrupt employer.

Insolvent insurer

Recessions hit workers compensation insurers with a vicious one-two punch. Layoffs reduce the insurance premiums the insurance companies rely on and declines in the stock market cut into the investment profits from those premiums.

In Nebraska, like most states, workers compensation insurers pay into guaranty funds to take over claims from insolvent insurers. 

Unfortunately, at least two prominent state governors, Steve Bullock of Montana and Chris Christie of New Jersey, raided guaranty funds in order to balance state budgets. We will probably find out if guaranty funds will serve as an effective backstop in the next few years.

Laid off on “light duty”

Jonathan Louis May of Morgan and Morgan in Memphis raised concerns on Twitter about what happens to injured workers on light duty who get laid off due to a plant closure or mass lay-off. I agree with May that many insurers will probably use layoffs to deny temporary disability.

In Nebraska, a lay-off should not impact a worker’s eligibility for temporary total disability. But it may take a court order to have back due temporary disability benefits paid after a lay off.

Collecting workers compensation and unemployment benefits

Workers laid off in a mass lay-off may have their employer file unemployment for them. Under the recently passed CARES Act, workers can get their weekly unemployment benefit plus $600 for up to four months.

Injured workers who aren’t already collecting temporary disability in Nebraska should be able to collect unemployment and back due temporary disability.

But injured workers in Nebraska who are already collecting temporary disability may not be able to collect these enhanced unemployment benefits. Normally a worker who is collecting temporary total disability benefits is not eligible to receive unemployment under Neb. Rev. Stat. 48-628.02(c). I am not aware if the CARES Act has modified that rule or if the state has eliminated that requirement during the crisis.

When in doubt employees receiving temporary disability under workers compensation ought to file an application for unemployment if they have lost their job due to a coronavirus related layoff. The state of Nebraska has eliminated job search requirements for employees laid off during the coronavirus crisis. Workers normally must be able to and available for work and be looking for work to receive unemployment benefits.  Workers who are temporarily totally disabled for workers compensation aren’t able to work. But if work eligibility isn’t a requirement to receive unemployment if you lose your job due to coronavirus, injured workers who are receiving temporary total disability would have a decent argument to receive unemployment in addition to temporary total disability benefits.

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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How to Apply for Unemployment while Workers’ Comp Is Denied

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As we have blogged before, it is possible to receive unemployment benefits, even though you are off of work because of a workplace injury. . You do not have to be fired to qualify for unemployment benefits. You can get unemployment benefits if you quit for good cause.

One good cause is if you quit because you are not physcially able to do your job. For example, if your work comp claim has been denied, but you have work restrictions that your employer is not accommodating, you can qualify for unemployment benefits.

When I explain this to my client, the question I often receive is how to actually apply for those unemployment benefits. Below is a list of steps:

1.You must be able and willing to work. Often, you will have work restrictions from your doctor when you are injured. Your employer may not allow you to work within those restrictions. If your work comp claim is denied, and your employer won’t accommodate your restrictions, you may apply for unemployment benefits. You must represent that you are able to work (within your restrictions). You cannot qualify for unemployment if your doctor takes you off of work completely. 

2.To apply online, follow the link at NEworks.nebraska.gov to file an application. You will be required to upload a resume and job-search information. If you do not have access to the internet, you may visit a local Job Center at the following locations listed here: https://www.dol.nebraska.gov/Home/AboutUs. Somehow, you must find a way to get internet access because you will need to post your resume online. If you cannot get to a Job Center, check with your local library. Slow internet speed hindering unemployment claims is a problem in rural areas in Nebraska and across the nation.

3. Have the following information ready to complete an application:

  1. Social Security Number
  2. Complete home mailing address, including ZIP code
  3. Telephone number
  4. Email address
  5. County you live in
  6. Driver’s license number or State ID card number
  7. If you select direct deposit, your bank routing number and account number
  8. The company names for all your employers from the past 18 months as they appear on your paycheck stubs or W-2 forms
  9. Complete mailing addresses of employers, including ZIP code and the city in which the business is physically located
  10. Your start and end dates with each employer, including month, day, and year
  11. Your reason for leaving each employer (lack of work, voluntary quit, discharge, leave of absence)
  12. Employment authorization number and expiration date (if a non-citizen)
  13. If you served in the military the past 18 months, DD 214 Member #4 Form

 

4.Communicate with the Nebraska Department of Labor. Often times someone from the Nebraska Department of Labor will call you to ask questions. These questions are often prompted by infornation submitted by your employer Make sure you answer take that call. We wrote a blog back in 2012 where a Nebraska Department of Labor employee said that many unemployed workers would get benefits if they would just answer their phone whwen  the NDOL calls. After you file a new claim for unemployment benefits, you must file a weekly claim for benefits.

5. If your claim is denied, or you are told that you are disqualified from benefits for a certain period of time, you may file an appeal, but the appeal must be filed within 20 calendar days from the date the determination was mailed. You can file an appeal online at neworks.nebraska.gov, in writing by mail, by fax at 402-471-1734), or by email (NDOL.Appeals@nebraska.gov). If filing an appeal by mail, send to: Nebraska Appeal Tribunal, Nebraska Department of Labor, PO Box 98941, Lincoln, NE 68509. If your appeal is in writing, you must state the reason you wish to appeal, and include your signature, Social Security Number and employer’s name. Include the Determination ID from your determination letter.

If you are unsure how to file an appeal, contact a lawyer or someone at our firm.  The Nebraska Department of Labor tries to schedule hearings within a few weeks of an appeal date. While that might seem like a lifetime when you aren’t receiving benefits, it isn’t a lot of time for a lawyer to get prepared for a hearing.

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

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

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

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

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

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

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

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

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

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

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

 

 

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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Indefinite suspensions are employer ghosting

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True fact stated: Millennials didn’t invent workplace “ghosting”

Employee “ghosting”, or employees quitting without notice, has been a hot topic among HR “influencers”. This trend seems to be blamed on the usual suspects of millennials and the internet.

But more thoughtful commentators have argued employers bear some of the blame for employee behavior through harsh application of employment at-will. One particularly nasty example of employer “ghosting” is the indefinite suspension.

This form of employer ghosting is well-established enough that the Nebraska Department of Labor presumes that an indefinite, involuntary suspension is a termination for the purpose of an unemployment appeal. As I’ve stated in previous posts, an employee who is terminated should have an easier time in getting unemployment benefits because they employer has to prove the employee was fired for misconduct in connection with work.

Unfortunately, there isn’t a hard and fast rule about how long of a suspension constitutes a termination. I believe it would be prudent to ask how long the suspension is supposed to last. I also think that an employee should check in with their employer about the status of investigation during a suspension. By taking these steps the employee shows that they didn’t intend to end the employment relationship, but that the employers lack of communication forced their hand.

Once an employee has filed for unemployment, the employer is forced to provide a reason and some evidence about if and how the employment relationship came to an end. If the employer doesn’t do this and the employee can show they were let go not to due to misconduct, they employee generally gets unemployment benefits. Unemployment appeal hearings also give employees some opportunity to investigate and question their employer about the reason for their termination. This information can sometimes be helpful in other employment-related cases like workers’ compensation or discrimination claims.

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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A new season for the Shameless economy?

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What’s going to happen on the next season of the Shameless economy?

Amazon made big news on Tuesday when it announced it was implementing a $15 minimum wage for all employees. 

Part of the story was why Amazon raised wages. Some pointed to low unemployment  while others pointed to popular criticism of Amazon’s labor practices. That criticism was expemplied by the Stop BEZOS Act targeting Amezon that was introducted in the Senate by Bernie Sanders.

The author of this blog falls into Amazon critics category. Last November I coined the phrase “Shameless” economy, based on the show Shameless, to describe how Amazon misclassifisied delivery dirvers as contractors.

While Amazon may win applause for raising the wages of employees, by classifiying workers as contractors they are excluding those workers from the benefits of emplyoees like unemployment and workers’ compensation. Amazon annouced this summer that it was expanding its own inhouse package delivery services and looking to contract  with “entrreprenuers”. Contractors aren’t covered by unemployment or workers’ compensation which are beneifts that are mandated by the government.  In other words, Amazon is growing its ranks of contractors which reduces its labor costs while receiving good publicity for raising wages for workers they classify as employees. 

If you watch Shameless you know the character Frank Gallagher. Frank is a terrible drunk and overall person. But occassionally Frank will seem to get his stuff in order only to fall back into his usual antics. Amazon’s labor practices are like Frank Gallagher’s behavior, every once in awhile he will get his stuff together and demand all sorts of credit. But sooner or later, as the millenials say on social media, he is back on his bulls***.

Keep an eye on Amazon.

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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The case against “Ghosting” for employees

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Employers are increasingly complaining of employees “ghosting” or leaving suddenly without notice. Temple Law Professor and author Brishen Rogers correctly pointed out on Twitter that employee ghosting is protected the by the 13th Amendment prohibition of slavery. Other commentators have pointed out that employers have been “ghosting” employees for many years and that some turnabout is to be expected as unemployment declines.

Employee “ghosting” is also the flip side of employment at-will. Employers are free to fire you at any time, but you are free to quit your job at any time without notice.

The concept of giving notice before quitting isn’t rooted in any legal requirement. But giving notice before leaving a job can give employees some legal benefits. Providing written notice can provide more protections to employees if done correctly.

Unemployment

In Nebraska, if you quit your job you have to prove you had good cause for the quit to get full unemployment benefits, whereas if you are fired your employer has to prove you committed misconduct in connection with your employment to deny you full benefits. Often when an employee gives two weeks’ notice, an employer will have them stop working before the two week notice period ends. In this situation an employee, for the purposes of unemployment benefits, has been fired. So unless the employer can prove the employee committed some misconduct, then they will receive full unemployment benefits.

Putting notice in writing can be helpful because it explains why you are leaving. Under Nebraska law, there are several reasons deemed by good cause for leaving. Having one of those reasons in a letter could help you receive unemployment benefits sooner.

I recently had an employee who was asked to submit a resignation letter due to alleged concerns about her job performance. My client was smart enough to write down that she would retract her resignation if performance improved. My client ended up winning her unemployment appeal due in part to that letter as it wasn’t clear that she really intended to resign.

Other employment laws

Written notice can also help in other cases. If an employee resigns due to workplace harassment, written notice of a quit would put an employer on notice of the harassment if it wasn’t done so already. Adding in that the resignation would be retracted if the harassment was addressed would also help.

A written notice that an employee is quitting because of a medical condition could prompt an attempt to accommodate that condition under the Americans with Disabilities Act.  I have seen written notice of quits because of medical conditions be helpful in winning benefits in workers’ compensation cases as well.

Giving notice is also helpful to an employee quits a new job for a new job that falls through. Courtesy can help an employee maintain a relationship with an employer and make it easier for an employee to go back to a job.

 

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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Immigration, SEC cases send mixed signals from Supreme Court

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Like Justice Stephen Breyer, many of us have pained looks when thinking about the Supreme Court this week

In a case with implications beyond securities law, the Supreme Court ruled in Lucia v. SEC  last week that an investment adviser convicted of securities fraud by the Securities and Exchange Commission (SEC) was unconstitutionally convicted because the Administrative Law Judge (ALJs) who tried his case was hired rather than appointed in violation of the appointments clause

Lucia is not a high-profile case like Tuesday’s decsion in Trump v. Hawaii that upheld the so-called Muslim ban. To some extent the cases may seem contradictary. But the cases can be reconciled in a way that reveals some disturbing truths about the American political system. While Lucia is an important case in its own right, it makes Trump v. Hawaii more understandable.

In January 2017, I wrote about how a companion case to Lucia could potentially wreak havoc with Social Security Disability (SSDI) cases.  Like the SEC, the Social Security Administration appoints administrative law judges to adjudicate social security disability claims. ALJs are government employees who are hired by agency rather than appointed by the President or agency head. The Supreme Court held that since ALJs at the SEC had significant discretion in deciding important matters they were officers for the sake of the appointments clause so they needed to be appointed rather than hired as employees.

SSDI hearings may be distinguishable from SEC hearings in that they are less formal and less adversarial. A parrty challenging the constituionality of SSDI on appointments clause grounds might have a hard time showing they had standing to make a challenge. But other forms of administrative  hearings are more formal and adversarial and involve parties with standing to make challenges.

In Nebraska, the Department of Labor hires ALJs to hear unemployment appeals. In many states, like Iowa, workers’ compensation cases are heard by ALJsthat are hired as civil servants rather than appointed by the Executive. SEC v. Lucia could help employers/insurers to make persuasive appointments clause arguments under state constitutions  that such arrangements are unconstitutional. Employees/plaintiffs have had a recent string of good decisions with state supreme courts challenngng laws they believe harm workers. Employers may decide to press their luck in the states with Lucia case as persuassive authority. The same challenges based on Lucia could conceivably be made about unemployment insurance at a state level.

Finally there was some irony in Lucia. Though ALJs hired by the SEC could only make recommendations to the commission, the court found that the commission usually deferred to the recommendation of the ALJ which was part of the reason why the ALJ was an officer rather than an employee. In Masterpiece Cakeshop an ALJ had decided that bakery had violated Colorado public accommodation laws in refusing to bake a wedding cake for a same-sex marriage. The comments made by the Colorado civil rights commissioner that caused the decision to be reversed by the court were made after the ALJ’s decision.  But in Masterpiece the argument that the commission was probably just deferring to an ALJ decision was absent. But Masterpiece and Lucia can be somewhat reconciled logically as they both show how the Roberts court is skeptical of administrative agencies when they interpret laws and adjudicate disputes.

In his dissent in Lucia, Justice Stephen Breyer stated the Supreme Court threatened to undermine the whole system of administrative adjudication with its decision.  The most high profile of these administrative systems is the Immigration Court which is backlogged with cases. President Trump proposed “solving” the backlog of cases by just doing away with due process altogether in deportation hearings.But if four-flushers and  flim-flam men deserve  due process in administrative hearings, then so do those accused of either entering or living in the United States without authorization.

The skepticism shown by the Roberts court towards admisnisative agencies that regulate the economy was absent the Department of Homeland Security (DHS) and other intelligence agencies in Trump v. Hawaii. Instead the Roberts court was beyond deferential to the Executive branch in a matter they deemed to be “national security.” To those raised during  the Cold War and post-9/11 era such deference to the executive on matters of national security seems natural. But as Justice Sotomayor poitned out in her dissent, the Judiciary, Legislative and Executive are equal branches of the government.

But are the branches of the government are equal when the Executuve commands a massive standing army and massive foreign and domestic intellignece agencies? The power of the Executive in this area is even greater when combined with business interests that former President Dwight Eisenhower described as the military-industrial complex in 1961.  William Jennings Bryan made a similar warning in 1900 in what was called his “Imperalism” speech. The corrosivve effects of the military-industrial complex or empire on our democratic form of government can be seen in how the Roberts court was willing to kow-tow to the Trump administration on matters of “national security” while the corut is more than willing to second guess Congress and administtrative agencies on matters relating to regulation of the economy.

 

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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