Tag Archives: unemployment

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, 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 ADA, Harassment, Nebraska, Unemployment, Workers Compensation and tagged , , , , , , .

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, 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 Constitutional law, social security disability, Unemployment, Workers Compensation and tagged , , , , , .

What the big California worker classification case means and could mean

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The California Supreme Court made big news in the world of workers’ compensation and employment law last week when it adopted the employee-friendly ABC Test  for the purposes of California’s minimum wage law. The decision was seen as a set back for gig economy companies like Uber who classify their workers as independent contractors. 

The bigger story as pointed out by CNN Money reporter, Lydia DePillis , and widely acknowledged by attorneys and legal academics is the patchwork of different state labor laws and how they will impact the gig economy and workers. My room temperature take is that employee classification laws aren’t even consistent within states. Nebraska has adopted the ABC test for the purposes of unemployment and for our wage payment act by statute. But Nebraska imposes the more employer-friendly right of control/economic reality test by case law for the purposes of workers compensation.

Labor Secretary Alexander Acosta has called for an update of labor and employment laws to aid the gig economy. Experienced workers’ compensation attorneys may view the fight over the classification of gig economy workers as a potential threat to their practices but as essentially an old issue that has new prominence because of the rise of companies like Uber. But worker classification legislation is only part of the story about how the rise of the gig economy could change workers’ compensation laws. Advocates for injured workers need to understand how so-called “portable benefit” schemes could change workers’ compensation laws. If enacted, portable benefits laws could radically alter the grand bargain behind workers’ compensation laws. They could also provide more uniformity of laws regarding employee benefits and protections like workers’ compensation

A portable benefit is defined as a benefit that is paid into an employer-sponsored plan that can be transferred to a new employer or to an individual who is leaving the workplace.[At least when it comes to health insurance, portability has some real benefits for workers’ rights. Employees aren’t tied to a potentially abusive employer just for the sake of keeping their health insurance. Candidly any portable benefits scheme that expands health insurance coverage would also help workers who do not have health insurance. The pro-worker potential of portable benefits was recognized by the National Employment Law Project who issued a report with the Roosevelt Institute about how portable benefits could be implemented.

But other portable benefit plans developed by Washington D.C. think tanks run the gamut from the really bad to the just bad.

MIT economist Jonathan Gruber, who was influential in the design of the Affordable Care Act, wrote a paper for the Aspen Institute that proposed catch-all individual security and retirement accounts as alternatives or replacements for workers’ compensation and unemployment insurance.  Without anything in the way of attribution, Gruber breezily states that higher workers’ compensation benefit payments create a “moral hazard” which leads to more injuries and longer durations of injuries. Gruber then goes on to propose that injured workers exhaust their individual security accounts before they collect workers’ compensation benefits and that workers’ compensation benefits be subject to federal taxation. It is important to note that Gruber doesn’t limit his proposal for portable benefits to gig economy workers.

Economists Seth Harris and Alan Krueger have proposed a somewhat more worker-friendly portable benefits scheme designed for gig economy workers to be paired with a new type of employee classification between employee and independent contractor for workers in a paper did they did for The Brookings Institute. The Harris-Kruger plan would allow gig economy employers to “opt-in” to state workers’ compensation laws. But even the more worker-friendly Harris-Krueger portable benefits scheme was created mainly to reduce litigation costs for gig economy companies. Former National Labor Relations Board member and associate counsel for the AFL-CIO, Craig Becker, pointed out that creating a new class of workers may create more litigationwhen employers try to re-classify employee as a new class of worker.[5] Becker and others pointed out that this is what happened in Italy when Italy created a third class of worker that was neither employee nor independent contractor. Legislation has been introduced in California that is along the line of the Harris-Krueger plan.

Many plaintiff’s lawyers seem to, or at least want to, believe that since workers’ compensation laws were enacted under 10th Amendment police powers then workers’ compensation laws are a matter of “state’s rights” and so-called federalization is uncalled for and unconstitutional. Congress has broad authority under its taxing power to effect economic activity that is beyond even the broad scope of its power to regulate individual commerce. The individual mandate of the Affordable Care Act was found to be constitutional under congressional taxing authority even though the mandate exceeded congressional authority to regulate interstate commerce. Recently passed changes to tax law have encouraged workers to take independent contractor status.

Besides workers’ compensation, the other mandated benefits that stem from the employee-employer relationship — unemployment, Medicare and Social Security — are all effectuated in whole or in large part through federal taxes. If a portable benefits are implemented on a nationwide basis, it will likely happen through the tax code and they could be enacted in a constitutionally valid way. Any discussion about the impact of the gig economy on worker classification laws should include discussion about portable benefits proposals.


 

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 Constitutional law, worker classification, Workers Compensation and tagged , , .

Truckers Call Baloney On Bloomberg View

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Truckers were quick to criticize a Bloomberg View piece about the effect of shortage of truck drivers on the economy that our firm posted on our Facebook page.

Hedge fund manager Conor Sen made a valid point that the lack of truck drivers could drive up the cost of goods and slow down the economy. Sen went on to argue that this shortage will be exacerbated by the imminent automation of trucking. Why train for a job that will soon be eliminated?

There are two problems with his article.

Truckers pointed out that the shortage of drivers could be attributed to bad working conditions within a trucking. Sen didn’t address this in his article where he portrayed the driver shortage as something that just happened.

Poor working conditions for truckers are somewhat of a function of employment laws. For example, truck drivers are largely exempt from the Fair Labor Standards Act. While better laws for truckers would probably help attract more drivers, the trucking industry is fighting state law efforts to improve trucker wages. The wages of professional drivers are being further eroded by the use of contract drivers who are wrongfully classified as contractors rather than employers.

Secondly trucking industry observers believe automation is far from imminent. Professional drivers do a lot more than just drive. Even some tech industry boosters in the business press admit that automation may not be imminent. Increasing automation in truck driving could benefit drivers by making driving safer. Most airplanes fly by autopilot, but planes still have pilots.

In short, the trucker shortage isn’t just something that happened. It is driven by poor working conditions for truckers. Those poor working conditions are caused in part by bad laws which seem to be getting worse. It’s also not fair or reasonable to argue the supposed imminent arrival of automation to truck driving is causing a truck driver shortage. Automation of trucking is far from imminent, but increased automation may make trucking safer which would make it a more attractive job, which in turn would increase the supply of drivers.

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 Truckers, Trucking 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 , , , , , , , , , , , , .

Can I Collect Unemployment if I Have a Workers’ Compensation Case?

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Injured workers are often forced to navigate the tricky waters of unemployment when they have a workers’ compensation claim. Not understanding how the two sets of laws interact can lead injured workers to trouble in unemployment and workers’ compensation for people who can ill afford the trouble. Here are some answers that Nebraska workers applying for unemployment after a work injury would want to know.

  1. When can you receive both workers’ compensation benefits and unemployment at the same time?Nebraska law allows you to collect workers’ compensation benefits and unemployment benefits at the same time only if your rate of weekly work comp benefit is worth less than your weekly unemployment. In that case, you collect your full workers’ compensation benefit, and unemployment pays the difference between your comp check and the unemployment benefits check. The advantage to the worker in this scenario is that the workers’ compensation is not subject to tax, while the unemployment benefits are taxable.Unemployment and workers’ compensation benefits rates are set under different formulas. You might fall into this category if you were injured shortly after starting a lower-paying job but had previously earned higher wages for a length of time at your previous job.However, if you do receive workers’ compensation benefits that are higher than your unemployment benefits, you cannot collect unemployment benefits.
  2. Won’t I “hurt” my workers’ compensation case if I have received unemployment benefits?There used to be some truth to concerns of unemployment benefits reducing the amount an employer has to pay on a workers’ compensation case. However, those concerns have temporarily been eliminated by the recent case of Hernandez v. JBS, found at this link: http://www.supremecourt.ne.gov/sites/supremecourt.ne.gov/files/coa/opinions/a12-435.pdf. In Hernandez, the Nebraska Court of Appeals overruled a Nebraska Workers’ Compensation Court judge who reduced the temporary total disability (TTD) pay awarded to a worker, who was fired by JBS, by the amount he received in unemployment.I believe the Nebraska Court of Appeals used sound reasoning to make their ruling in Hernandez.  However, the Nebraska Supreme Court has the ability to overturn the Nebraska Court of Appeals. Also, the Nebraska Legislature has the ability to rewrite Nebraska workers’ compensation and/or unemployment laws to overturn Hernandez.I would expect efforts to overturn Hernandez will be made in the courts and Legislature. My guess is the argument for overturning Hernandez will be that injured workers are receiving a “windfall” by receiving workers’ compensation on top of unemployment.

    This argument is nonsense. First of all, if a worker receives work comp benefits and unemployment, judges with the Nebraska Department of Labor and the Nebraska Workers’ Compensation Court have likely both found that the employee was not at fault for being terminated. Second, if a worker who cannot work because of a work injury is forced to apply for unemployment because he or she isn’t receiving workers’ compensation, there is a good chance that the employer either concocted a reason to fire the employee or forced the injured worker to do a job that she or he was unable to do.

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 and tagged , .

Collecting Unemployment If You’re Fired

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If you are fired, your employer has the burden to show that you were fired for misconduct connected to your work. If they are alleging attendance or performance problems on your part, they should produce documents to prove your attendance or performance problems to you. If your employer fails to produce documents showing performance or attendance problems on your part and you dispute your employer’s allegations, you should be able to avoid a penalty on your unemployment benefits. Furthermore, if you are let go for health reasons out of your control such as an injury, you should be able to receive unemployment benefits.

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 Unemployment and tagged , , .