Category Archives: employment law

Back In The game Or Back To Work Too Soon?

Senator Dan Quick has introduced employee-friendly legislation

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

Last weekend’s Big 10 Conference football championship game between Ohio State and Wisconsin contained some off-the-field controversy when former Wisconsin Badger and current Cleveland Browns player, Joe Thomas, criticized the fact that Ohio State starting quarterback J.T. Barrett was playing in the game six days after arthroscopic knee surgery.

While Barrett lead the Buckeyes to victory with 211 passing yards and 60 rushing yards, Thomas argued that college players should have the option of a second opinion when it comes to major surgeries like players do in the NFL. Thomas argued that team doctors are overly influenced by coaches who want players to return to action as soon as possible and that college players are over eager to return to the field.

A similar issue will be debated in Nebraska’s legislature next month. Senator Dan Quick of Grand Island has a bill on the floor that would require an employer to pay for a second opinion if an employee disputes a finding from a doctor paid for by the employer. Quick’s bill was inspired by his experience of being sent back to work prematurely by a doctor chosen by his employer’s workers compensation insurer.

Quick is an electrician by trade and is one of the few blue-collar workers who serves in the Nebraska Legislature. Another blue-collar worker, Lee Carter, was recently elected to the legislature in Virginia. Like Quick, Carter had a bad experience after a work injury. Carter had his hours reduced after his accident and was unable to find a lawyer because of confusion over which state had jurisdiction over his work injury.

Blue collar workers running for office may be a trend as iron worker Randy Bryce is running for Congress against House Speaker Paul Ryan and Wisconsin Firefighter’s union president Mahlon Mitchell is running for Governor of Wisconsin. I am encouraged that people like Dan Quick and Lee Carter have taken their bad experiences after work injuries and have gone into politics to directly address the problems they  faced first hand and make sure other workers will have better experiences if they get hurt on the job.

What Do You Mean, I Can’t Sue My Employer?

OSHA find the owner of the Didion Milling Plant in connection with an explosion that killed 2 workers and injured several more.

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

I sat down this morning with a television reporter interviewing me about a horrific explosion in Wisconsin that killed 5 workers and injured many more.  The explosion on May 31, 2017 at the Didion Ethanol Plant in Cambria, Wisconsin occurred when corn dust exploded, destroying the entire plant.  OSHA hit the company with a $1.8 million fine, calling it a preventable explosion.

The reporter’s question to me was “Why can’t the employees sue their employer?”  The answer goes back over 100 years in Wisconsin to the “Grand Bargain” that was struck between management and labor.  Sometimes referred to as the “great tradeoff,” employees traded away their right to sue their employer, even for egregious safety violations, in return for wage loss and medical benefits to be paid regardless of fault.  The goal was to relieve the injured employee from the burden of paying for medical care and replace lost wages.  At the turn of the 20th Century, Wisconsin workplaces were often dangerous places, and employers had little incentive to make them safer.  Injured workers could rarely afford the kind of legal cost for recovery efforts in court and employers benefitted by use of contributory negligence, assumption of risk and co-employee negligence as bars to an employee’s recovery in court.

The administrative system that was established by worker’s compensation was created to provide a direct remedy to the employer and to limit (by Exclusive Remedy) litigation against the employer.  The system was supposed to insure a method of providing benefits to an injured employee during the period of disability and to ensure the employees were not reduced to poverty because of injuries.

Speed, dependability, and financial assistance were components of the new system, and by making employers responsible for injury, the law offered strong incentives to make workplaces safer.  Unfortunately, that has not occurred.  The latest statistics indicate that over 100 people die annually in Wisconsin and over 5,000 annually across the nation.

Revealing to a grieving widow that the remedy available is limited to four times the deceased worker’s annual income is precious little consolation for loss of a spouse’s life and lifetime income.

Portability, The Gig Economy And Workers Compensation

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

Changing employment laws to encourage so-called “portable benefits” is an idea that goes hand in hand with finding new ways to classify gig economy workers. These proposals are being pushed in a  growing number of states. These proposals also enjoy support from Democrats and Republicans in Congress. These proposals could also radically alter workers’ compensation in the United States.

The idea of third classification of worker between employee and independent contractor is to give so-called “gig economy” workers some protections and benefits without employers having to bear the full costs of employment – including unemployment, workers’ compensation and health insurance. Sometimes this third class of workers is described as “dependent contractors.

Portable benefits are usually discussed in the context of contractors because traditionally benefits such as unemployment, workers’ compensation and health insurance have been provided by employers. So-called portable benefits, are detached from employers. The Affordable Care Act increased portability of health insurance benefits through the use of exchanges Portability of health insurance was touted as a way to help create new businesses because potential entrepreneurs were not tied to an employer for health insurance.

The idea of portable benefits and a new classification for gig employers is also touted as a way to reduce litigation against companies such as Uber for how they classify employees. But former National Labor Relations Board member Craig Becker pointed out that creating a new class of workers may actually create more litigation when employers try to re-classify employee as dependent contractors. 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.

Becker and others point out that the drive to create a new class of workers is being driven by tech companies such as Uber as a way of reducing labor costs. The real risks of creating a new classification of workers is shared even by some who promote the sharing or gig economy. Gene Zaino, founder and CEO of MBO Partners, a firm that provides services to independent workers, stated that any new classification of independent workers should only include workers who earn more than $50 per hour. Under such a scheme lower-paid workers would still retain the benefits and protections of the employment relationship.

Though states are pondering portability and dependent contractor laws, there is a push for federal legislation so that laws can remain uniform across the country. Any federal push for portable benefits for so-called independent workers would clash with state-based workers’ compensation laws. Workers’ compensation is traditionally a state law concern because when workers’ compensation laws were enacted the power of the federal government to implement laws regarding workplace safety were limited. During the New Deal-era, that interpretation of the interstate commerce clause changed to allow broad regulation of the workplace.

Advocates for state-based workers’ compensation laws likely have little constitutional grounds to overturn any federal legislation that would substitute “portable benefits” for so-called “independent workers” for state-based workers’ compensation benefits. Some critics who argue, correctly, that many state-based laws inadequately compensate injured workers could also be open to or even welcome a federal substitute for  insufficient state workers’ compensation laws.

Post-Injury Drug Test? OSHA Says Not So Fast

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

Workers who report an on-the-job injury may not be subject to mandatory drug testing if a new rule from the Occupational Safety and Health Administration that prohibits blanket post-injury drug tests withstands a court challenge from employers.

In May, OSHA published a rule prohibiting employers from having policies that force employees hurt on the job to take drug tests because of concerns about retaliation. This blog has long recognized the potential for retaliation that mandatory drug tests pose and supports the proposed rule by OSHA. OSHA’s new rule was drafted at roughly the same time as the release of the U.S. Department of Labor report that was critical of the shortcomings in state workers’ compensation systems.

Though OSHA implemented the limits on drug testing to limit retaliation, the rules limiting drug testing also help preserve employee doctor choice, which is an integral part of workers’ compensation law in Nebraska and other states. Many employers will inform employees that they must get drug tested at an occupational medicine clinic if they have a work injury even if workers have a right to see their own doctor. This can lead to employees being forced back to work too soon and or not receiving sufficient treatment for their work injuries. Both the fear of retaliation and the circumvention of doctor choice rules lead the costs of work injuries to be borne by employees, which is a major concern of the Department of Labor.

Due to push back from employers, the rule’s enforcement will be postponed until Nov. 1 and will likely be delayed longer due to a court challenge to the rule. A challenge to a Labor Department rule deeming that home health aides were employees for the purposes of the Fair Labor Standards Act took over a year to work its way through the federal courts, until it was upheld by a federal circuit court in June.

Even if the rule is implemented, post-injury drug testing will not disappear from the workplace. Employers can still test if they have a reasonable suspicion of intoxication or drug use. Most federal and defense contractors will be exempt from the OSHA rule, as well as truckers and railroad employees. Furthermore, in states with drug-free workplace laws, mandatory post-injury testing may still be permitted, depending on the language of the statute. Nebraska allows employers to fire an employee who refuses a lawful request for a drug test. If the new OSHA rule is ultimately upheld by the federal courts, I would expect a push by employers to amend drug-free workplace laws.

Tax Day For Independent Contractors: More Paperwork, More Taxes

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

The issue of whether Uber drivers and other so-called “Gig Economy” workers are employees or independent contractors is a hot topic among lawyers and policy makers. But last week independent contractors in the Gig Economy and beyond had a more mundane but no less serious dilemma:

Filing their taxes

Independent contractors are required to pay their full FICA and Medicare taxes. These higher taxes can be offset by more liberal deductions but that assumes a contractor has more expenses to deduct.

Deductions also require paperwork.  Filing your taxes as an IRS Form 1099 independent contractor is more complicated than filing your taxes as an IRS W-2 employee.

Independent contractor status can be helpful for someone who wants to be an entrepreneur. But for those who just want to support themselves and family, involuntary independent contractor status can mean higher taxes, more paperwork and more risk of trouble with the IRS and state revenue agencies.  Future tax days could be even more stressful if more workers are forced into independent contractor status in order to support themselves and families.

Three Clues Your Employer Doesn’t Want You To Return To Work After An Injury

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

Apologists for Thought leaders in the workers compensation insurance industry like to tout how they want injured employees to “return to work.”  But insurance industry rhetoric about the importance of return to work is belied by at least three common scenarios involving employees with serious work injuries.

  1. Employer requires an employee to resign in order to receive a lump sum settlement for their workers compensation claim: Early on in my career a defense lawyer told me that his client “Didn’t want their employees driving to the plant in an Escalade (this was the mid-2000s) after they settled their workers compensation case.” Putting aside the absurdity of someone who earns wages that would make their kids eligible for free or reduced lunch buying a luxury SUV after they had been off of work for an extended length of time, this practice indicates that some employers really don’t want injured workers to return to work after an injury.

    A recent discussion over the WILG listserv indicated that resignation as a condition of a workers compensation case settlement was a common practice across the United States. An agreement to resign normally comes as a separate severance agreement. Those settlement agreements may not be binding if an employer doesn’t include the right language in the release which is why an injured worker would want to consult with an employment lawyer or have a lawyer familiar with employment law and workers compensation represent them in their work injury.

    Certain states, like Massachusetts, outlaw the practice of conditioning a settlement on resignation. Even in states where the practice is considered lawful lawyers may consider challenging such practices on the basis of anti-retaliation laws, unfair claims practice laws or causes of action that prevent interference with contractual relationships.

  2. Employer requires employee to return to work with “no restrictions”. 100 percent healed policies are considered to violate the Americans with Disabilities Act by the Equal Employment Opportunity Commission (EEOC) and by some intermediate level federal appellate courts. Regardless of whether the Supreme Court or Congress ultimately decide such policies are illegal, oftentimes a person with an injury that requires surgery and time off from work is going to have some permanent restrictions.

    Many times requests that an employee return to work without restrictions are sent after an employee exhausts their 12 weeks of FMLA. Oftentimes employers will extend a short amount of unpaid leave in addition to FMLA. When injured employees receive these letters many of them feel like their company is trying to push them out. This feeling can sometimes be correct. That’s why it is helpful to have an attorney who knows how workers compensation and employment laws intersect.

  3. Employer suggests that employee apply for private disability for a work injury: Private short-term (STD) and long-term disability (LTD) policies can be helpful to employees. Some policies even allow employees to collect both LTD and STD with workers compensation benefits.

    But some employers will push employee onto disability because it is cheaper than paying workers compensation benefits. Even more insidiously if an employee stays off work long enough that they are eligible for long term disability, some long-term disability policies require that employees apply for social security disability or SSDI in order to continue receiving LTD. Many of these policies hold if an employee receives SSDI they need to payback the LTD insurance company for the time that SSDI and LTD benefits overlapped.

    I ran into a policy like this representing a client in a disability discrimination case. Courts have questioned the legality of these policies as well. If you are stuck in a situation where you are applying for long term disability because of a work injury and being forced to apply for SSDI, you should consult with a lawyer who is familiar with workers compensation and SSDI.

Proposed changes to Iowa workers compensation cruelly target elderly employees

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

Anti-worker changes could be coming to Iowa workers compensation. To me the cruelest reform would be the proposal to end permanent total disability benefits at age 67 and limit workers who are over 67 who become permanently and totally disabled to 150 weeks of benefits. One memorable client of mine demonstrates the callousness of the proposed Iowa reforms.

My client Doris Newkirk was 83 years old when she was injured working as a hostess at Lone Star Steakhouse in west Omaha in June 2006. She was near a bathroom door when a large male co-worker came barreling into the bathroom and caused Doris to fall back and injure multiple parts of her body. Like many retirees, Doris worked because she needed the money. After her injury she was unable to work. Fortunately Doris was able to receive permanent total disability benefits to make up for the income she lost because she wasn’t able to work. Those permanent benefits started in September 2007 and continued for five years and 10 ½ months until her death on July 21, 2013.

If Nebraska law limited those injured over the age of 67 to 150 weeks of permanent total disability benefits, Doris wouldn’t have been paid anything for the last three years of her life. To her credit, Doris travelled from Omaha to Lincoln in her late 80s to testify against similar legislation when it was proposed in Nebraska. According the Business and Labor committee clerk at the time, the state Senator who introduced the bill at the behest of insurance interests made a motion to kill the bill after listening to her testimony.

Workers compensation is a cost of business. But according to CNBC, Iowa has the second lowest cost of doing business in the country. Iowa, like Nebraska, generally ranks well in national surveys of business climate. Iowa’s weakest area when it comes to business climate,  according to CNBC, is quality of workforce. Unlike Nebraska, Iowa lacks vocational rehabilitation for injured workers. If Iowa is looking to reform its workers compensation system, they should consider investing in vocational rehabilitation so injured workers can fully regain their ability to contribute to the economy in Iowa.

Six Questions You Should Answer Before You Become a Whistleblower

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

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.