Tag Archives: whistleblower

Medicaid Cuts Will Cause More Nursing Injuries

Posted on by

While efforts to repeal the Affordable Care Act and cut Medicaid appear to have stalled for now, any successful effort to cut Medicaid will adversely impact workplace safety for nurses and nurse’s aides.

Studies by the National Institutes of Health show that reductions in Medicaid funding leads to less staffing at long term care facilities and that lower staffing leads to more injuries for nursing employees. Since most nurses and nurse’s aides are covered under state-based workers compensation laws the additional costs of work injuries from Medicaid cuts may not be fully accounted for on a federal level.

At least in Nebraska nursing employees have some ways to protect themselves when advocating for safer working conditions even if they do not belong to a union.

Nebraska has a whistleblower law that applies specifically to health care workers, including nurses. The benefit of this act is that it allows employees to recover for damages similar to what they could collect under the Nebraska Fair Employment Practices Act, including front pay and possibly attorney fees, without having to exhaust administrative remedies. Additionally, health care workers would have four years to bring a suit under the health care whistleblowers law, rather than the much shorter and complicated statute of limitations under the Nebraska Fair Employment Practices Act.

Nebraska has a broad general whistleblower law that allows employees to oppose unlawful conduct by their employers. Nebraska law requires that nursing homes to be adequately staffed. Federal law also requires that employers provide a workplace to be free of recognizable hazard. Inadequate staffing would certainly be deemed be a recognizable hazard in a nursing home. The only drawback to Nebraska’s whistleblower law is the short and potentially uncertain statute of limitations.

Nebraska law would also allow nurses reporting inadequate staffing to be protected from retaliation under a public policy claim that also has a four year statute of limitations.

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 Government, Legislation, Workers' Compensation and tagged , , , , , .

Six Questions You Should Answer Before You Become a Whistleblower

Posted on by

Whistleblowers have helped expose some of the biggest corporate scandals of the 21st century, including Enron and the Bernie Madoff scandals. Whistleblowers usually expose themselves to a real personal risk by opposing wrongdoing. These risks often include getting fired from their job. If you are thinking about blowing the whistle on illegal conduct at work, here are six questions you should ask yourself:

1.         Are you really opposing unlawful or illegal activity? Lawyers who defend companies against whistleblower claims often may paint whistleblowing as mere disagreement about management style or philosophy. As a matter of law, a whistleblower also must have good faith or honest belief that they are opposing illegal conduct. If you are thinking about bringing a whistleblower complaint, it would be a good idea to do a little research. Whistleblowers.gov is a great resource for the various industries that are covered under the Occupational Safety and Health Administration whistleblower statutes. Most experienced employment attorneys are also willing to do some free consultation for prospective whistleblowers as to whether they are opposing illegal conduct.

2.         Does someone in upper management at your company know about your complaints? This can be intimidating, but in my experience, you will have a stronger case if you bring up your concerns to someone higher up in management than your direct supervisor or worksite manager. This puts the company on notice about the unlawful conduct, and it bolsters your credibility as someone who was concerned enough about the potentially illegal conduct that they reported it to someone within the company who could act on it. Likewise, if someone with authority at your company is on notice of the potentially illegal conduct and that person doesn’t take action, that can bolster your possible case. Sometimes firms will have an “ethics” hotline or will refer you to human resources. I don’t think it hurts to report through those channels, but I think you should also report the unlawful conduct to someone who has the actual authority to change the practice that you are challenging.

3.         Can you frame your complaint as a business problem and suggest solutions to the problem of unlawful conduct and be reasonable in how you report the misconduct? I cribbed this idea from a post from the excellent SkloverWorkingWisdom blog written by attorney Alan Sklover. All things being equal in an employment law case, the party who is most reasonable is going to win. This fact tends to disadvantage employees, because it’s hard to keep a level head when you are being mistreated or being asked to participate in unlawful conduct at work. But do your best to be level headed and objective when you bring up your complaints to management. Like the point in the last paragraph, if the employer ignores your practical solution to the potentially unlawful conduct, then you have bolstered your possible case.

4.         Will other employees will join you in your complaints? Whistleblowers tend to get tarred as tattletales. If co-workers are joining you in your complaints, the case becomes more credible. If you make a legitimate complaint as a group, you also gain protection of the National Labor Relations Act for engaging in protected concerted activity, as well as under any whistleblower law that you might be bringing a case under.

5.         How strongly can you support your claims? To win any whistleblower retaliation case, you must have evidence to prove your case. In most cases, this requires written evidence that often takes the form of emails that implicate possible wrongdoers. If a case gets into litigation, then in theory, such documents must be disclosed. That does not always happen in practice. Additionally, having documents will help a lawyer determine if you have a possible claim and how strong your possible claim could be.

Employees may have concerns about revealing confidential documents and/or be concerned that their employer may take legal action against them for revealing company information. Many whistleblower laws protect certain types of information from being deemed confidential. Employers are also somewhat reluctant to act against whistleblowers, because this can invite more retaliation litigation. But potential whistleblowers should be aware of possible legal liability for disclosing company information, so an employee should be very careful about how they choose to share company information. Attorney-client communications, even those communications involving prospective clients are confidential. By consulting with an attorney, a prospective whistleblower can get some guidance as to whether they are risking legal liability by disclosing information.

Evidence can also take the form of witness testimony, which is why it is helpful if you have a group of employees opposing potentially unlawful conduct.

6.         Are you willing to change jobs or relocate? Even if what you think is a valid whistleblower complaint is merely a dispute with a manager over something that it isn’t illegal, the fact for you is that if you are doing something or working in an environment that you don’t like, you are almost setting yourself up to fail. This is probably even more true if you have a valid whistleblower claim. Studies show that it is easier to find a job while you are still employed. Even with anti-discrimination laws, employers have broad discretion to fire employees under the “employment at-will” doctrine. The underappreciated flip side of employment at-will for employees is that they can quit without cause or notice. If you are in a dysfunctional or even hostile work environment, it’s smart to take advantage of the ability to quit freely if you have another job lined up.

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 and tagged , , , , , .

OSHA’s Region 7 Busy in September

Posted on by

The U.S. Department of Labor’s Occupational Safety and Health Administration is frequently referred to as OSHA.

OSHA’s Region 7 covers Iowa, Nebraska, Kansas and Missouri, although Iowa operates its “own OSHA-approved job safety and health programs and cover state and local government workers as well as private sector workers.” In addition, the approved program “must have standards that are identical to, or at least as effective as, the federal OSHA standards,” according to an OSHA web page. The region has had a busy month releasing the results of investigations and resulting fines, so I thought it would be interesting to make this blog post a roundup of the results, which were gleaned from OSHA news releases, found at the web page for Region 7.

Although the proposed fines unfortunately do not reflect the severity of some of the injuries, OSHA’s job is not to punish businesses for injured workers, but for unsafe working conditions. That also means that fines are often decreased or eliminated when the hazard in the workplace is fixed. However, OSHA investigating a business based on an accident can often help an injured person’s workers’ compensation case.

  1. Date and location: Sept. 2, McCool Junction, Neb.

    Proposed fine: $84,000

    Number of citations for safety violations: one repeat, two serious to Farmers’ Cooperative at its McCool Junction fertilizer plant

    Details: A 73-year-old worker died from injuries after falling while loading a tanker truck on May 7, according to OSHA’s news release. Citations were related to lack of fall protection, lack of guard rails, and not providing railing on stairways.

  2. Date and location: Sept. 2, Kansas City, Mo.

    Damages paid to whistleblower: $12,000: $2,000 compensatory and $10,000 punitive

    Law violated: Federal Railroad Safety Act by Farmers’ Cooperative

    Details: A railroad conductor at the Murray Yard complex was disciplined in retaliation after a doctor’s appointment in November 2013 where the doctor told him to stay out of work for the rest of the day because of a personal illness, according to OSHA’s news release. Although the worker notified a supervisor about the doctor’s treatment plan, “the company then accused the employee of violating its attendance policy and subsequently disciplined the employee.” In addition to paying damages, the company must “remove disciplinary information from the employee’s personnel record and provide whistleblower rights information to its employees.”

  3. Date and location: Sept. 22, Omaha, Neb.

    Proposed fine: $133,900

    Number of citations for safety violations: three repeat and three serious, including confined space safety regulations, to Watco Companies of Pittsburg, Kan., a business that specializes in rail car repairs and has 30 employees in Omaha

    Details: A worker “reported suffering from respiratory inflammation after performing welding work inside a rail car in Omaha,” according to OSHA’s news release. An investigation in March was launched after the Nebraska Department of Labor Workers’ Compensation Division notified OSHA via a report of the illness. Repeat violations were “for failure to implement training, procedures and practices for safe entry into these spaces, including the company’s failure to evaluate for hazards, and to provide workers with communication devices or implement measures to prevent unauthorized entry.” Previous citations that made these repeat happened in Texas in 2013. “Serious violations were cited for failure to provide administrative and engineering controls to reduce damaging noise exposure, electrical hazards and lack of atmospheric controls in confined spaces.”

  4. Date and location: Sept. 25, Holdrege, Neb.

    Proposed fine: $14,000

    Number of citations for safety violations: two serious: “for failing to train workers in the recognition of unsafe conditions and to teach them how to access emergency medical services from a job site,” according to OSHA’s news release. The company is Van Kirk Sand and Gravel, operating as Van Kirk Brothers Contracting, which is based in Sutton, Neb.

    Details: One worker died and one worker was hurt after getting hit “by an excavator bucket while installing stormwater drainage in a trench … in Holdrege on July 17.” The inspection by OSHA “found that one of the employees sustained puncture wounds from the bucket after it disconnected from the excavator and rolled into the trench from a height of about 4 feet.” That worker died, and the other worker “suffered contusions and abrasions in the incident and has since returned to work.”

  5. Date and location: Sept. 25, Wichita, Kan.

    Damages paid to whistleblower: $261,787 for back wages and damages; and also reinstatement to their job and removing references to the disciplinary action from the employee’s record

    Law violated: Surface Transportation Assistance Act by Stericycle Inc. of Lake Forest, Ill., which specializes in biohazard waste disposal

    Details: “An investigation found the company wrongfully terminated a transportation supervisor at its Wichita terminal because the worker raised safety concerns after a driver was instructed to pull a trailer without a valid license plate,” according to the OSHA news release. When the employee was fired in September 2012, it was because of his status as a whistleblower. “It was determined that his protected activity was a contributing factor in the company’s decision to terminate his employment on Sept. 14, 2012, in direct violation of STAA.”

In addition to investigating unsafe working conditions, OSHA also works with nonprofits, businesses and industries to promote safety and accident prevention, which is what the remainder of the news releases in September are about.

  • On Sept. 3, OSHA announced that it is forming an alliance with the Heartland Workers Center of Omaha. This effort will “provide HWC staff, immigrant workers and others with education, guidance and access to training resources on protecting the health and safety of workers,” according to the OSHA news release. This includes promoting workers’ rights, how to make an OSHA complaint, what employers’ responsibilities are under the Occupational Safety and Health Act, and providing Spanish-language safety and health training.
  • On Sept. 16, OSHA announced that it will work with Holder Construction Group to keep workers safe during the building of a data center called the Oasis project in Omaha, “which will include a chiller plant, administrative areas and supporting mechanical, electrical and plumbing rooms,” according to OSHA’s news release. The estimated 180 tradesmen who will construct the building, along with their employers, will learn “about hazards construction workers face daily on the job, including fall, electrical, caught-in and struck-by hazards.” In addition to other details, “all contractors and subcontractors on the project will be required to have specific written safety and health programs in place and attend meetings before major work takes place.”
  • Finally, on Sept. 25, OSHA announced in a news release that it was National Farm Safety and Health Week Sept. 21-27. Although the way workers’ compensation is handled when it comes to agriculture varies from state to state, ag is a dangerous industry. The news release includes both statistics and resources with many links for ag workers and their loved ones and also employers. The 2014 theme was “Safety Counts: Protecting What Matters,” according to the OSHA news release. “With a fatality rate of 22.2 for every 100,000 full-time workers, agriculture recorded the highest fatality rate of any industry sector,” in 2013. Issues include “awareness of confined space, farm equipment, grain handling … work-related lung diseases, heat exposure, noise-induced hearing loss, struck-by and fall hazards, skin diseases and certain cancers associated with chemical use and prolonged sun exposure.”

While it would be great if OSHA didn’t have to exist because workplaces were safe for employees, it is helpful to see both proactive steps taken to make workplaces safe and also businesses being held accountable when workers are injured because businesses or job sites are unsafe in Region 7.

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 Government, Workplace Injury and tagged , , , , , , , , .

Has Online Filing Added to OSHA Whistleblower Backlog?

Posted on by

OSHA’s recent decision to allow employees to file whistleblower cases online has led to a large increase in filings and has added more delay to claims that were already backlogged before online filing. According to OSHA investigators, this increase in filings hasn’t been met with a proportionate increase in staff. One investigator estimated it takes over 400 days for OSHA to conclude investigating claims.

The delay created by the backlog hurts investigations for many reasons. Witnesses become unavailable, and recollections of events change. Unscrupulous employers also can use the delay to hide or destroy documents and intimidate witnesses.

Of course, employees who feel they have been retaliated against oftentimes have the option of filing a state or local fair employment agency claim on the basis of retaliation. Employees might also have the option of filing for retaliatory discharge without filing a fair-employment claim, as is oftentimes the case if they are fired for filing workers’ compensation. However, this summer the U.S. Supreme Court likely made many types of retaliation cases more difficult to win with their decision in the Nasser case. The court ruled in Nasser that employees claiming retaliation cases under federal Title VII must prove that exercising their rights under Title VII was a “but for” cause of their termination.

But under whistleblower laws under OSHA – such as the Surface Transportation Assistance Act (STAA), which protects interstate truckers, and Dodd-Frank, which protects workers in the financial services industry – an employee must only show that their report of illegal conduct was a contributing factor to their termination.

Employees with a retaliation case should consult with an experienced employment attorney to determine the best forum for any 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 employment law, Workplace Safety and tagged , , , , .

NEOC Awards Whistleblower Client Misclassified as Independent Contractor

Posted on by

justiceI was happy to have the chance to represent Theron Chapman in his whistleblower claim against his former employer, Midwest Demolition. While the Lincoln Journal Star headline of “Man chased from job by manager with stun gun awarded back pay” is catchy, the real story here is that an employee who was fired for complaining of legitimately being misclassified as an independent contractor won some measure of justice from the Nebraska Equal Opportunity Commission.

Mr. Chapman had a legitimate grievance about being misclassified as an independent contractor. Nebraska law explicitly prohibits the type of misclassification that he questioned. In 2010, State Sen. Steve Lathrop, who authored the legislation outlawing misclassification in Nebraska, said in his bill’s statement of intent, as quoted in Truckinginfo: the web site of Heavy Duty Trucking magazine, that:

“When a contractor misclassifies an employee, the employee is ineligible for unemployment and workers’ compensation benefits, loses labor-law protections and does not receive employer-provided health insurance. Misclassification creates an unfair advantage to unscrupulous contractors who are able to outbid law-abiding employers who must take into account the payment of taxes and insurance premiums when bidding for jobs. The State’s loss in revenue negatively affects the funding of essential programs such as unemployment benefits.”

The deeper story here is that people on the margins of the workforce can sometimes vindicate their rights in the workplace. My client was hired through a job lottery at the People’s City Mission, a homeless shelter, here in Lincoln. People in his situation are vulnerable to abuse in the workplace. Not every instance of bad behavior by management is legally actionable, but that is true from the executive suite to low-wage workers like my client. But fair-employment laws can protect people who are being abused in the workplace and do sometimes provided protections to the people who need them the most.

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 Court, Employee Misclassification, employer fraud, employment law, Firm News, Independent Contractor, Uncategorized and tagged , , .