My Next Move for Veterans

Today’s post was shared by US Dept. of Labor and comes from www.mynextmove.org

Describe your dream career in a few words:

Examples: doctor, build houses

There are over 900 career options for you to look at. Find yours in one of these industries:

Administration & Support Services

Answer questions about the type of work you might enjoy. We’ll suggest careers that match your interests and training.

Still not sure? Check out careers in these groups:

Are you a veteran looking for work?
My Next Move for Veterans helps you find a civilian career similar to your military job.

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Abraham Lincoln Never Went to Law School

Today’s post was shared by The Jernigan Law Firm and comes from www.jernlaw.com

Today’s post comes from Leonard Jernigan at the Jernigan Law Firm.

I recently ran across a book entitled The Book of Lists written by David Wallechinsky, Irving Wallace, and Amy Wallace. It was published by William Morrow and Company in 1977. One list caught my attention in particular. It was a list of 13 distinguished lawyers who never went to law school. Many individuals used to study law on their own or work as an apprentice with a lawyer for several years. “Honest Abe” was too poor to attend an expensive law school, but he nevertheless became one of our greatest leaders and an excellent trial lawyer.

Some say that the idealistic young people who go to today’s law schools seeking to learn about justice quickly become obsessed with “anxiety, alienation, and grueling competition for grades, class rankings, and journal positions” (quoting Joseph G. Allegretti in The Reflective Counselor, page 48), and these obsessions carry over into the profession and lead to self-defeating behaviors. We may want to re-evaluate the role of law schools in training lawyers.

The complete list is quoted below from page 35 of The Book of Lists:

  1. Patrick Henry (1736-1799), member of the Continental Congress, governor of Virginia
  2. John Jay (1745-1829), first chief justice of the Supreme Court
  3. John Marshall (1755-1835), chief justice of the Supreme Court
  4. William Wirt (1772-1834), attorney general
  5. Roger B. Taney (1777-1864), secretary of the treasury, chief justice of…

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The Privatization of the Justice System – The Epic Systems Corp. v. Lewis Opinion Impact on Workplace Protections

Today’s post was shared by The Jernigan Law Firm and comes from www.jernlaw.com

Today’s post comes from Kristina Thompson at the Jernigan Law Firm.

“The privatization of the justice system” – those are the words Cornell University labor law professor, Angela Cornell, used to describe the Supreme Court’s recent ruling on workers’ rights and employer forced arbitration. The Epic Systems Corp v. Lewis opinion authored by Justice Gorsuch effectively allows employers to force their employees to waive access to the use of the public courts in exchange for arbitration.

The lawyers for the employees described the Supreme Court’s decision as a “devastating blow” ending the ability of workers to get together and file collection wage dispute complaints or sexual harassment claims.

Now, millions of nonunion employees are barred from collective suits over the employment issues.

What happened?

One of the founding policies within the NLRA is that it exists to counter “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employer who are organized in the corporate or other forms of ownership association.”

The Court’s 5 – 4 decision “puts the nail in the coffin on the one open question of whether the NLRA would preclude this,” said Debra Katz, a Washington employment lawyer. The majority decision, authored by Justice Gorsuch, held that the Federal Arbitration Act allows federal courts to enforce…

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A truly Epic failure for workers

He just turned 50 last year…

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Free speech in the workplace has been discussed heatedly in the wake of the cancellation of “Roseanne”and a new rule prohibiting NFL players from kneeling during the national anthem. Parties on both sides in the culutrue war have argued that employees don’t have freedom of the speech on the job. While that is generally true, the National Labor Relations Act gives employees some rights of speech and associationon the job. But a recent Supreme Court case could have paired back those rights.

In Epic Systems v. Lewis the United States Supreme court held in a 5-4 decision that neither the National Labor Relations Act  nor the savings clause of the Federal Arbitration Act  prevents enforcement of arbitration clauses that preclude class or collective actions against employers by their employees.

As many commentators and the dissent pointed out, the Epic decision will make it more difficult for workers to band together to address wage and hour violations. Individually, even with attorney fees available, it is not economical for employees to pursue individual cases of wage theft if those individual cases amount to a relatively small amount. An example of such a case were the so-called “donning and doffing” cases pursued against various meat packing plants in the Midwest.

Employers have won some major victories in the area of wage and hour law this Supreme Court term. Epic follows on the heels of a decision making it easier for employers to prove they are exempt from the overtime provisions of the Fair Labor Standards Act

But Epic could impact labor and employment law beyond just wage and hour law. Here are a few ways Epic could impact more than just wage and hour law. This list is not inclusive and Epic is probably worth more discussion, but I wanted to discuss the broader implications of this case and bring up lesser discussed but important implications of this case.

What is a protected concerted activity?

The National Labor Relations Act protects protected concerted activity for the mutual aid of co-workers that goes to the terms and conditions of employment. The employees argued that participating in a collective action case under the Fair Labor Standards Act. Justice Neil Gorsuch, writing for the five Justice majority, disagreed. Gorsuch wrote that the NLRA only covered activities that employees do for themselves, not class action litigation. What concerned me more, was Gorsuch’s  use of a “canon”of statutory construction to hold that seemingly broad language in the NLRA about it employees being able to engage in collective activity for “mutual aid and protection” only applied to forming labor unions and other activities related to formal collective bargaining.

This conclusion concerned me because I have long advocated for non-unionized employees to engage in collective self-help on the job to address issues like bullying  or even accommodation of a disability.  But, as the dissent points out, association rights on the job are also protected by the Norris-LaGuardia Act (NLGA) NLGA expressly provides for a right to self-organization among employees. Though the Epic court rejected NLGA as a basis for overcoming an arbitration clause, it’s broader language could still be the basis for workplace speech and assocation rights than a paired down NLRA.

That Norris-LaGuardia would serve as backstop for employee association rights would assume the Roberts/Gorsuch court is merely following some rules of statutory construction rather than imposing their own economic preferences into the law. That might not be a fair assumption. The Federal Arbitration Act explicitly excludes employment contracts from coverage. In 2001, the Supreme Court limited that exclusion from workers in the transportation industry.  Epic would appear to further limit that exclusion in contradiction to plain and clear statutory language to the contrary.

 

Can Epic be made to benefit workers?

Epic may benefit some employees. One impetus behind using arbitration clauses to prevent class action claims is to defeat class action claims on retirement plans under ERISA. However ERISA also governs short-term and long- term disability policies. Currently, short-term and  long-term disability policies very difficult to win because courts defer to insurers on how the plans are interpreted. Some employee-benefit attorneys believe that employees will have a better chance of disability claims in arbitration.  Union-side labor lawyer, Moshe Marvit has also speculated that Epic might make it easier for employees to form unions.

Many management-side attorneys are also skeptical of arbitration  which could also prevent employers from adopting arbitration clauses.

Constitutional perspectives

So how is it that the Supreme Court can ignore seemingly plain language about the Federal Arbitration Act not applying to employment disputes? The Circuit City decision from 2001, provides one clue. In Circuit City the Supreme Court used a narrow interpretation of interstate commerce to hold that the FAA only applies to transportation employees. This holding is consistent with other holdings from the Rehnquist and Roberts courts that limit that power of the federal government to regulate through the commerce clause. (12)

Though Epic doesn’t discuss state police powers under the 10th Amendment much of the case law relied upon in Epic has to do with how the FAA pre-empts state laws preventing arbitration in certain cases. Essentially the so-called “contracts clause” which prevents laws that impair the obligation of contract.  This includes state laws enacted under 10th Amendment police powers. The Supreme Court took up a contracts clause case, Sveen v. Melin, this term.  That case could also have implications in the world of employment law depending on the language of the decision and any possible concurring opinions from the likes of Justices Gorsuch, Alito or Thomas.

Irregular shifts complicate workers’ compensation claims

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Irregular work hours, driven increasingly by automated scheduling, have lead San Francisco and Seattle to pass municipal ordinances to regulate the practice because irregular schedules make child care, transportation and working multiple jobs increasingly difficult for low wage workers.

Irregular hours also increase the risk of work injury and they can complicate the claims of injured workers.  Here are a few ways irregular working hours can impact a workers’ compensation claim:

Benefit rates

Workers compensation disability benefits are paid based on a workers’ average weekly earnings or their average weekly wage – AWW for short. But when you work 40 hours one week and eight the next, what’s your average work week? Mathematically, in this scenario the average week would be 24 weeks. An insurance company would likely use a simple average.

But under Nebraska law a court is supposed to exclude abnormally low weeks from the calculation of average weekly wage. In other words if the case is pushed into court, a Judge will exclude abnormally low weeks which would lead to a higher benefit rate.

Many employers also pay shift differential where night and weekend shifts get a higher hourly wage. Effective hourly wages can vary from week to week for employees who work irregular shifts that include night and weekend shifts.

Nebraska excludes overtime premium in general from AWW, but shift differential still counts. Sometimes insurance companies will exclude shift differentials from their calculations of average weekly wage. This is particularly true when insurers are calculating permanent disability benefits.

It is also common for workers who work irregular shifts to work less than 40 hours a week. For the sake of permanent disability benefits, Nebraska assumes a minimum of a 40-hour work week . Insurers will often not follow this rule. Irregular shift workers are not the only workers who are subjected to this practice, but when you combine exclusions of shift differential along with not using a 40-hour week, irregular shift workers can get substantially underpaid when it comes to workers compensation.

Our firm, like most other firms, represents injured workers on a contingent fee basis. The problem with that arrangement is that while an under payment of benefits may be a meaningful amount of money to an injured worker, it may not be enough for an attorney to justify taking on an underpayment claim on a contingent fee basis. Most state and federal wage and hour laws allow for fee awards that can be many times the unpaid wages. The reason for attorney fee awards in this case is the important public purpose of these laws.

Workers compensation has the same general purpose of as wage and hour laws, but in Nebraska it is difficult to get attorney fees in a disputed workers compensation case because an award of penalties requries a lack of a reasonable controversy. Conventional wisdom is that employees must show a lack of reasonable controversy to win attorney fees. However, some case law seems to distinguish the standard for winning a penalty versus winning an attorney fee.

Medical appointments

Irregular shifts also make it difficult to schedule medical appointments. This is particularly true of specialists who would be treating a more serious work injury. Missing appointments can be a red flag for judges, doctors and insurers if not explained. A good attorney can help an injured worker explain how an irregular work schedule prevented them or interfere with the. from attending medical appointments.

 

Trump Policies Bad for Workers’ Compensation

Dr. Richard Victor

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

Dr. Richard Victor, an economist who founded the Workers’ Compensation Research Institute (WCRI) 35 years ago, just presented a paper at the WCRI National Conference in Boston.  He indicated that federal policies on immigration and health insurance promise to make worse the challenges the United States faces by an aging workforce and a widespread labor shortage. He noted that workers’ compensation claims could double and overall costs could expand by over 300% in the next dozen years, without any increase in benefits to workers.  External forces could bring far more cases into the system because of a number of forces, including an aging workforce, labor shortage, slowdown in immigration, and more shifting to workers’ compensation claims that should be paid by group health insurance. Dr. Victor projected current claims out a dozen years to 2030 indicating that claims should actually be down to about ¾ of today’s numbers, but external factors will more than overtake that favorable percentage. Labor shortages caused by baby boomers retiring will increase injury rates.  Research indicates that the older workforce will mean an increase in lost work days and more injuries and a real impact on labor shortage as more baby boomers retire. Dr. Victor indicated “These labor shortages, which will be longer and deeper than anything we have experienced, will lead to significant increase in workers’ compensation claims and longer durations of disability.” During a period of labor shortages, employers relax hiring standards and hire workers they would not have hired in a normal labor market, including workers who are less capable. The overall labor shortfall leads to more workers’ compensation claims.

The Immigration Factor:

Economists have seen immigration as a factor that mitigates against the impact of the labor shortage. The Trump Administration, changing federal immigration policy, will further tighten labor markets and prolong the duration of a labor shortage. Moreover, Trump’s “anti-immigration rhetoric” also discourages people to come to America.  In health care, Victor noted that one in six health care workers is foreign-born including 27% of physicians and surgeons, 15% of nurses, and 22% of home health aide, each of which effects the workers’ compensation system.

Health Insurance

A shortage of people with adequate health insurance is also a problem for workers’ compensation. Health insurance deductibles have risen from the hundreds to many thousands of dollars, and this new reality causes more workers to go without or delay getting medical care for an injury or illness. When they can no longer ignore their condition, many claim it as a work-related condition and seek workers’ compensation (he cited a Rand Research study indicating workers with high deductible or co-insurance plan postponed care in over one-third of cases of the most common kind of workers’ compensation claims – soft tissue injuries.” As the number of workers who lose their insurance grows (since the Trump Administration and Congress ended subsidies and other aspects of the Affordable Care Act) case shifting form health insurance to workers’ compensation could have a major effect, ballooning workers’ compensation claims by as much as 35% in the next dozen years.

Victor’s conclusion: “You end up with a 300% increase in workers’ compensation costs without increasing benefits to injured workers.”

 

Work-Related Death in Milwaukee

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

Another sad day at a Wisconsin workplace.  The news came out that a worker was killed in a traumatic incident at a major Wisconsin employer: Oak Creek man killed in Caterpillar accident.

Such tragedies are becoming more and more common in Wisconsin and around the country.  Recent statistics  show that workplace deaths are rising with every passing year.

In Wisconsin, “death benefits” under the Worker’s Compensation Act are payable to a deceased worker’s dependents.  If an injury kills a worker, a surviving dependent is entitled to a death benefit that is equal to four (4) times the worker’s annual wages.  A “dependent” generally is a spouse living with the deceased at the time of death, or if there is no live-in spouse, any children under the age of 18.   If there is no live-in spouse or minor children, other family members could bring claims for partial dependency benefits.

Most of these tragic claims are accepted and paid without question, but disputes might arise (requiring attorney involvement) when family connections are involved.

Funeral and burial expenses (up to $10,000) should also be paid by worker’s compensation.

 

Non-combat veterans could be at risk for traumatic brain injuries

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

The link between traumatic brain injury (TBI) and blasts from improvised explosive devices (IED) in veterans of the wars in Iraq and Afghanistan has been well-documented.  However new research has has shown that even veterans and active service members who have not faced combat may be at increased risk for TBI.

A study by the Center for New American Security showed increased risks of TBI for soldiers who trained using heavy weapons including shoulder mounted anti-tank weapons. The study recommended improved developing new helmets to improve protections against blasts.

TBI can impact hearing as well as speech, mental processing and mood. Our firm does not handle veteran’s benefits claims, but we recommend veterans who trained with heavy weapons to contact such a firm. Our firm would be happy to recommend firms to any veterans who suspect they have a TBI or any other service connected disability.

But TBI is not solely a military issue. Workers in construction and manufacturing can also be exposed to noise and other factors causing TBI. I would hope that improvements in safety equipment protecting soldiers from TBI could be adapted for civilian use.