Tag Archives: Unicameral

The good, bad and so-so of workplace law in this year’s session of the Unicameral

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State law impacts the workplace as much if not more than federal law. Nebraska workers gained some protections in the recently adjourned legislative session. Equally important, Nebraska workers didn’t lose any rights or protections in the recently adjourned session.

However, most legislation that would have benefited employees stalled. Nebraska’s low threshold for filibusters and traditional deference to committees makes it difficult to pass legislation without broad support. Most of the proposed legislation that would have affected the workplace lacked that broad support in the legislature.

Nebraska will likely retain its business-friendly litigation climate and middle of the pack ranking in comparative costs of our workers compensation systems (Overall costs of workers’ compensation are declining)

So here is the good and so-so of enacted legislation effecting workplace laws in Nebraska. I will also touch on what didn’t pass and talk about some interim studies that might affect legislation down the road.

The Good

LB 217 introduced by Lincoln Senator Patty Pansing Brooks, would make it illegal for an employer to retaliate against employees for discussing salaries. A few years ago, I would have thought the bill would be unnecessary because the National Lanor Relations Act (NLRA) broadly protected concerted activity in the workplace. But in 2018 the Supreme Court handed down the Epic decision which narrowed the definition of concerted activity under the NLRA. Workers in Nebraska will get back some of those pre-Epic protections.

LB 418 — This law, introduced by Omaha Senator Machaela Cavanaugh would prohibit debt collection of medical bills related to a work injury during the pendency of a workers compensation claim. Nebraska has drawn national media attention for how our laws favor aggressive debt collection. This law protects injured workers.

The law requires injured workers and or their attorneys put in a fair amount of work to comply with the new rule. Employees are required to file a petition to invoke protection of the law, so I would be interested to see if the number of petitions filed in the workers compensation court increases.

The collections bill was also paired with a bill that made it easier for non-resident aliens to receive agreed upon settlement proceeds.

On a side note, Cavanaugh has asked for an interim study by the Business and Labor Committee to study the effectiveness of Nebraska’s anti-discrimination laws

The Bad

The bad news of this legislative session for workers’ in Nebraska is that most legislation that could have helped workers did not get enacted into law. Here are some highlights (or lowlights):

LGBT rights — Legislation to include sexual orientation and gender identity within the Nebraska Fair Employment Practices Act fell well short of the necessary votes to overcome a filibuster.

Omaha’s municipal human rights ordinance prohibits discrimination on gender identity and sexual orientation grounds. Lincoln city council member Jane Raybould hinted at a recent town hall type meeting that Lincoln’s “fairness ordinance” that would include sexual orientation and gender identity within Lincoln’s human rights ordinance might be a ballot question in 2020.

The LGBT community may have some protections from discrimination on the job under a “sex plus”  theory of discrimination which outlaws sex stereotyping.

Employee classification — LB 577 ntroduced by Omaha Senator Tony Vargas would have expanded the power of the Nebraska Department of Labor to shut down worksite suspected of misclasfiying employees as independent contractors. The state loses out on tax revenue through misclassification, while workers miss out on workplace protections like workers compensation and unemployment through being misclassified.

Senator Vargas has also proposed an interim study about workers classification that will bear close scrutiny as it will certainly discuss how to classify gig economy workers and discuss so-called portable benefit laws in Nebraska 

Workers compensation — The legislature shelved legislation that would have clarified when temporary disability ends and permanent disability begins. I’ve blogged extensively about the gap or squeeze that can arise when an injured worker isn’t receiving any types of benefits but can’t work or aren’t allowed to return to work.

The legislature also shelved legislation that would have provided death benefits in workers compensation cases, to workers without dependents.  increased funeral benefits and would have limited expenses charged for medical reports. Likewise the legislature also didn’t pass legislation that would have made it easier for firefighters and other first responders to collect workers’ compensation benefits.

Wage and hour and unemployment — Legislation that would have provided paid leave and prohibited retaliation under Nebraska’s Wage Payment and Collection Act didn’t pass. Legislation limiting mandatory overtime for overburdened corrections workers also did mot pass. Legislation that would have expressly included quitting to take care of a family member as a good cause for a quit. was rejected  Lawmakers also rejected a propsal to increase the minimum wage for tipped employees and to index the state minimum wage for inflation.

The so-so

LB 428 exempted highway constriuction employees on seasonal layoff from job search requirements as a condition of receiving unemployment compensation. I pointed out that while business as a whole likes tough work search requirements as a condition of receiving unemployment, construction employers who have seasonal layoffs don’t like them as it gives employees incnetive to switch jobs.

I believe this was somewhat of a missed opportunity. Like other states with weak rural internet connections, Nebraska’s internet-based system to log job search information with the state is difficult to navigate for rural employees. The legislature needs to fix the mechanism that eligibile workers use to receive their 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 employment law, Nebraska, Unemployment, Wage and Hour, Workers' Compensation and tagged , , , .

Bill would eliminate workers’ compensation squeeze

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An Omaha senator seeks to limit or end the time many injured workers in Nebraska receive no workers’ compensation benefits due to insurance companies unfairly interpreting Nebraska case law about when payment for temporary disability benefits end and when payment for permanent disabiliy begins.

LB 526 introduced by State. Senator Mike McDonnell would add language to Neb. Rev. Stat. §48-121 that would continue temporary disability until the later of a) any permanent disability as measured by permanent impairment for a scheduled member disability has been determined or, in the event of a claim payable under a loss of earning power basis when a loss of earning power evaluation is complete or b) 30 days after the employee has been given notice of termination.”

The bill also requires employers to provide copies of evidence used to end temporary disability and give the employees the right to a medical examination at their employer’s expense in certain circumstances when temporary disability payments are halted.

Our firm strongly supports this new bill. Roger Moore wrote a good post in 2015 about the human cost of the temporary-permanent squeeze. Last year I wrote a post about how the squeeze came about through case law.

The argument underlying the squeeze is that temporary disability ends when a doctor states a worker has plateaued medically. That means temporary disability benefits stop. But permanent disability has needs to be ascertained before permanent disability benefits start. This could mean waiting for a permanent impairment rating or it could mean waiting for an FCE, having a doctor endorse the results and then having a vocational counselor determine disability. This can take weeks or even months. If an employee isn’t working that means weeks or months without income. I think allowing insurers to exploit the gap between temporary and permanent disability is an incorrect reading of the law because doesn’t effectuate the beneficent purpose of the Nebraska Workers’ Compensation Act to pay benefits in a timely manner to injured workers.

I also like the notice provision of the legislation. Once an injured worker starts receiving temporary disability benefits, they have some expectation that they will continue which would arguably create a constitutional property interest in continued receipt of those ongoing workers’ compensation benefits. Ending those benefits with no notice or explanation would arguably violate due process.

Critics of the legislation may point out there are cases involving multiple scheduled members that can also be paid on a loss of earning power basis which could cause uncertainty about the period of when temporary disability should continue. In such cases I believe that prompt payment of scheduled member impairments helps to eliminate the gap issue. However impairment ratings under the AMA 6th may undercompensate injured workers and be less likely to address the gap issue.

Our firm encourages our clients and others in Nebraska to contact their state senators and tell them to support LB 526. You can find out who your state senator is here and find their contact information here.

 

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Nebraska, Unicameral, Workers' Compensation and tagged , , , , , , .

Changes to Nebraska workers’ compensation laws could speed up settlements

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Our firm was active in drafting recent changes to Nebraska workers’ compensation law

Two changes to Nebraska workers’ compensation law that became effective today could speed up receipt of settlement proceeds for injured workers.

LB 953 will allow settlements to be approved quicker if lawyers representing the injured worker certify the settlement is in the best interest of the worker. These changes should result in more settlements being paid within weeks rather than months. The current law requires court approval of many final settlements.

Another change this year to workers’ compensation laws came with the passage of LB 957, which allows for electronic payment for workers’ compensation indemnity benefits. As of July 19, 2018, if a worker is entitled to indemnity workers compensation benefits, he or she may be paid via direct deposit, prepaid card, or other electronic means. The employee must agree to be paid via electronic payment and the employer must notify the employee of each electronic payment. If handled properly, this could mean quicker payment of workers compensation benefits to the employees.

Workers compensation law was created by the Nebraska legislature. The legislature changes the law occasionally. Rehm, Bennett, Moore, Rehm & Ockander monitors those proposed changes and was involved in drafting these changes working on behalf of the Nebraska Association of Trial Attorneys.

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 legislature, Nebraska, Settlements, Unicameral, Workers Compensation and tagged , , , , .