Category Archives: Uncategorized

Statement by U.S. Secretary of Labor Acosta on January Jobs Report

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

WASHINGTON, DC – U.S. Secretary of Labor Alexander Acosta issued the following statement regarding the January 2018 Employment Situation report:

“Our strong economy continues to grow, as 200,000 new jobs were added in January 2018. Since Election Day 2016, American job creators have added 2,553,000 new jobs. The unemployment rate remains at a 17-year low of 4.1%. Job growth in construction was strong in January, with 36,000 new jobs created.

“January saw the third consecutive monthly rise in the wage growth rate, with a 2.9% 12-month increase in average hourly earnings. December 2017 wage growth rate was revised up to 2.7%; November 2017 was 2.5%. This may be the start of a welcome trend in wage gains, and marks the highest percentage increase in average hourly earnings since 2009. Average hourly earnings data excludes bonuses.

“The reaction to the President’s landmark tax reform law has been overwhelmingly positive. Job creators across the nation have announced billions of dollars in bonuses, higher wages, and new benefits for employees. Many have also announced new investments in facilities and equipment. All of this is welcome news.”

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California Job Center Helps Veteran Get Career Back on Track

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

Editor’s note: This story was adapted from a post by the San Bernardino County Workforce Development Department.

Marine Corps veteran Gregory Lincoln was 59 when word came down that his IT specialist position was being eliminated. Gregory had more than 20 years of professional experience in IT and education-related fields, as well as degrees in business administration, criminal justice, and information technology. Unemployment was devastating.

“My family was facing our darkest moment ever and we had no hope,” Gregory says. “My wife and I just bought a home. I didn’t know where to turn.”

That changed when his local veterans’ center referred him to the High Desert America’s Job Center of California in Victorville. The support, encouragement, and guidance he received from his “angel crew,” as he calls them, put him on the path to success.

“I’d started thinking something was wrong with me. I was on the verge of losing my home and no jobs were coming in,” he says. “They came in and boosted my confidence when it was at its lowest level.”

From left: Sam McMakin, Christine Watson, Gregory Lincoln and Shelly Wolfe.
From left: Sam McMakin, Christine Watson, Gregory Lincoln and Shelly Wolfe.

His three “angels” – veterans representatives Sam McMakin and Shelly Wolfe from the California Employment Development Department, and Christine Watson from the San Bernardino County Workforce Development Department – took Gregory under their wings, aligning his…

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Collecting Mine Safety Fines

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

American drivers understand that if they go over the speed limit and receive a ticket from a police officer, they must pay the fine that has been issued, or their driver’s license will be suspended. The laws for drivers, and the consequences of not paying fines, are clear to all.

America’s mine operators also operate under a set of well-known laws. The federal Mine Act is straightforward on enforcement matters: Inspectors conduct mandated annual inspections and issue citations for safety and health violations, which carry a monetary penalty. The payment of these fines is required by law, and funds go to the U.S. Treasury.

These penalties are an important reminder of the need to ensure safe and healthy working conditions for America’s miners. When penalties are assessed, full and timely payment of fines must be a routine matter for all mine operators — just as it is for drivers who violate the rules of the road.

As the Assistant Secretary of the Mine Safety and Health Administration (MSHA), it is my job to promote safe and healthy workplaces, and help prevent mining accidents, illnesses, and injury for the more than 300,000 men and women who work in our nation’s mines. Mine operators must pay the safety and health fines they have been issued by MSHA, as required by the law.

The great majority of mine operators are serious in their approach to safety responsibilities. They maintain safe working conditions, correct problems, and pay their…

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Rule Requiring Disclosure of Labor Law Violations by Federal Contractors Temporarily Blocked by Federal Courts

President Barack Obama signs the “Fair Pay and Safe Workplace” executive order

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

A federal judge in Texas recently issued a temporary injunction against the Fair Pay and Safe Workplaces Executive Order. The order would have required contractors applying for federal contracts to disclose any violations of most federal and state labor and employment laws within the last three years in order to receive a federal contract over $500,000.

In an opinion criticized by employees’ groups and hailed by employers’ groups, U.S. District Judge Marcia Crone criticized that the Fair Pay and Safe Workplaces Executive Order overstepped executive authority on a number of grounds, including the fact that the forced disclosure violated the First Amendment rights of government contractors. The order amounted to defamation of certain contractors, which violated their Fifth Amendment liberty interests, and the order’s restriction on the use of arbitration agreement in employment contracts of federal contractors violated the Federal Arbitration Act.

Crone also wrote that the executive order violated congressional intent in how labor laws were enforced, because it forced contractors to settle labor and employment law issues in order to remain eligible for government contracts.

But in my mind, abstract concerns about the rights of contractors pale once actual people are considered. I represented a gentleman who was fired from a federal contractor after he complained about not being paid properly. In fact, he was chased off the premises by the owner of the company with a stun gun, and the Nebraska Equal Opportunity Commission found in a public hearing, after hearing evidence from both sides, that the company, Midwest Demolition, had retaliated against my client. Earlier this year, Midwest Demolition paid a settlement through a consent decree to the U.S. Department of Labor for not paying their employees overtime. To me, the Fair Pay and Safe Workplaces Executive Order is perfectly suited to deal with egregious employer misconduct.

Judge Crone did not order an injunction against enforcement of the paycheck transparency parts of the executive order, which would require federal contractors to inform workers if they were independent contractors and to fully and clearly explain deductions.

The Fair Pay and Safe Workplaces Executive Order is the latest example of the use of executive-branch rule-making to expand employee protections. Earlier this year, the Supreme Court upheld a Department of Labor regulation expanding wage and hour protections to home health aides after it withstood a court challenge from employers. The Occupational Safety and Health Administration’s attempt to limit post-work injury drug testing is currently being challenged in federal courts. Executive rule-making is a consequence of partisan gridlock when Democrats control the presidency and Republicans control Congress. Pundits and political forecasters are anticipating more political gridlock after the election, so executive rules that withstand court challenges could be how employee rights expand for the foreseeable future. 

CBC: B.C. Wildfire Smoke Partly to Blame for Washington State Farmworker’s Death

Today’s post comes from guest author Kit Case, from Causey Wright.

By Cory Correia, CBC News
 Posted: Aug 10, 2017

A temporary farm worker has died in Washington state and advocacy groups have blamed poor working conditions, in part due to smoke from B.C. wildfires.

Honesto Silva Ibarra, 28, of Mexico, died in a Seattle hospital Sunday after he became ill last week at the blueberry farm where he worked near Sumas, Wash., just south of the Canadian border. 

An advocacy group, Community to Community Development, said Silva became sick from dehydration, and died after going into cardiac arrest. (Silva used his second name as a surname)

The group’s executive director, Rosalinda Guillen said poor working conditions at the blueberry farm have been aggravated by wildfire smoke that has blown across the border.  

“The workers have been overworked, underfed, have not been hydrated enough, and this has been going on for weeks, and that is what led to the death of Honesto,” said Guillen.

Silva had been working as a berry picker for Sarbanand Farms since the spring. He was married with three children, all of whom are in Mexico.

Guillen said Silva fell ill last week while at work. He went to a local hospital, where Guillen said he suffered cardiac arrest. He was transferred to Harborview Medical Center in Seattle, where he died, the hospital said.

But a spokesman for Sarbanand Farms said Silva’s death was caused by complications from his diabetes. In a statement sent to local media, chief administrative officer Cliff Woolley said one of Silva’s relatives told the company that Silva ran out of medicine but did not tell anyone else.

When Silva fell ill last week at work, the company said it called for an ambulance and he was taken to hospital.

Silva’s illness sparked protests among his co-workers who complained that working conditions at the blueberry farm were unsafe. Nearly 70 workers were fired Saturday after the demonstrations.

Protests continued Tuesday after workers heard news of Silva’s death. 

Meanwhile, Guilllen said other workers have also fallen ill.

“The smoke coming in over our area has aggravated those situations already and caused the workers to say ‘We’re going to die if we don’t do something about this,’ because they were collapsing,” said Guillen.

On Monday, five people were taken to clinics, suffering from advanced dehydration, she said.

Washington state’s department of Labour and Industries is investigating the case, looking into workplace safety factors. It has not decided whether to proceed with a formal investigation. 

Read the rest of the CBC report here…

Photo credit: CBC News

Rolling Back The Rules That Have Made OSHA Effective In Protecting Workers

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

I am regularly surprised in my job.

I recently met with a client who worked in a psychically demanding industrial job who told me that his employer required a supervisor to accompany the employer to the company infirmary. Many supervisors refused to accompany employees to the nurse, so many employees would forgo going to the infirmary.

My jaw dropped when my client told me this.

Last year, OSHA cited a Pilgrim’s Pride Poultry plant in Florida for citation for failure to provide proper medical treatment for their employees. This was the first time such a sanction had been made. In a post last August, I pointed out that Pilgrim’s Pride was sanctioned for not making proper referrals to orthopedist for overuse injury. In the scenario my client described to me, many injured workers were unable to even get first aid for potential work injuries.

Inability to receive basic medical treatment on the jobsite forces employees to seek medical treatment outside work hours. But employees can risk termination if they seek medical treatment outside the plant without notifying their employer. Inability to obtain basic medical care on the job site makes it less likely that employers will log injuries and more likely they can defend workers’ compensation claims for lack of notice.

A year ago, OSHA would have probably been interested in such a scenario. But the Trump Department of Labor is rolling back many workplace safety rules implemented by the Obama administration. Workers may have to look elsewhere besides OSHA for vigorous enforcement of workplace safety laws.

Employees can report potentially unlawful practices like requiring a supervisor to accompany an employee to a nurse’s station to OSHA on their own. At least in Nebraska, this would allow them to pursue a whistleblower claim. But in many instances employees risk termination even a court finds that their employer engaged in unlawful retaliation.

Employees might also be able to pursue wrongful discharge claims based on violations of public policy. The potential problem with these types of claims is often times courts will find that federal law doesn’t create public policy for the purpose of a state law claim. Courts could also find that laws do not create a clear public policy sufficient to create a claim for wrongful discharge.

I am a firm believer in employees working together to address issues in the workplace. So-called protected concerted activity doesn’t involve litigation and is often effective in resolving workplace issues quickly. But again employees take some risks of retaliation. These retaliation claims are sometimes heard by the independent National Labor Relations Board. While the Department of Labor has signaled it will be less responsive to employee interests, the independent NLRB seems to be a more friendly forum for employee grievances against their employers.

What Could You Possibly Know About Your Own Disability?

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

In 1991, the Social Security Administration drafted a rule that explained that controlling weight was given to medical opinions from treating sources about the nature and severity of claimants’ impairments if they are well-supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with other substantial evidence in the record. This rule is commonly known as the “treating physician rule.”

The SSA has recently proposed a number of changes to this rule based upon a 2013 study (downloadable PDF). Among the recommendations were to no longer apply controlling weight to doctor opinions addressing the following issues:

  • Statements that an individual is or is not disabled, blind, able to work, or able to perform regular or continuing work;
  • Statements about whether or not an individual’s impairment(s) meets the duration requirement for disability;
  • Statements about whether or not an individual’s impairment(s) meets or equals any listing in the Listing of Impairments;
  • Statements about whether or not an individual’s impairment(s) functionally equals the Listings.

The SSA will also not use a diagnosis, medical opinion, or an individual’s statement of symptoms to establish the existence of impairment. A physical or mental impairment would now need to be established by “objective medical evidence.”

It’s easy to understand how discounting a treating source could adversely affect applicants for disability. These physicians have the most interaction with their patients in terms of frequency and duration of involvement. When you contrast a treating physician’s opinion with a doctor chosen by the SSA who most often never even meets or speaks with the claimant, you can see the problem. Putting these two entities on the same footing legally seems misguided at best and purposefully devious at worst. 

However, when you add in that the SSA will not use an individual’s statement of symptoms as a basis for finding disability, particularly in the mental-health field, you make proving disability a much more difficult proposition than it already is. Individuals who are applying for disability typically face difficulty seeing doctors on a regular basis due to obvious financial considerations.  They often cannot afford the “objective” tests to fully explore the extent of their diagnoses. Moreover, there are no objective tests to diagnose depression, schizophrenia, anxiety, etc. The very nature of these claims requires a thorough examination of the claimant’s expression of disability to diagnose, evaluate and treat. The SSA cannot possibly ignore the claimant’s accounts of their disability and do an adequate job of evaluating these claims, especially the ones based upon mental illness. 

The SSA needs to jettison these proposed rule changes, and stick with the controlling weight standard that has been in place for 25 years. Furthermore, they need to allow the judges to evaluate claimant testimony without rigid rules that discount their personal evidence.

To comment on the SSA proposal, follow this link: – Docket Folder Summary and press the “Comment Now!” button. Comments are due Nov. 8 (next Tuesday, aka Election Day).  

Please contact an experienced Social Security Disability lawyer with specific questions about the details of your case.

Recalling the Forgotten Provision of the ‘Grand Bargain’

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

The Oklahoma and Florida supreme courts both overturned anti-worker changes to their state workers’ compensation laws based in whole or in part on their state constitutions. Workers’ compensation laws, for the most part, are state laws. This post seeks to explain why workers’ compensation laws are state laws and what that could mean for workers’ compensation laws in the future.

The vast majority of workers’ compensation attorneys and industry observers know the term “Grand Bargain.” In the “Grand Bargain,” employees gave up the right to sue their employers in tort for work injuries in exchange for defined benefits regardless of fault.

Workers’ compensation laws emerged roughly a century ago. However, Congress did not have the power to enact the “Grand Bargain” because of how the U.S. Supreme Court interpreted the Commerce Clause. In 1895, the court held in United States v. E.C. Knight that manufacturing was not commerce. In 1918, the court overturned a law prohibiting child labor on similar grounds and additionally held that the effects of child labor did not have enough of an impact on interstate commerce to justify regulation. 

The Supreme Court did uphold the constitutionality of workers’ compensation laws in the case of New York Central Railroad v. White. However, the court upheld workers’ compensation laws based on a state’s so-called “police powers” under the 10th Amendment.

During the New Deal era in the 1930s, the Supreme Court’s interpretation of the interstate commerce clause changed so that workers’ compensation laws could have been enacted by the federal government. But by then, most states had workers’ compensation laws, so a general federal workers’ compensation law was unnecessary.

‘Federalization’ in the Post-New Deal Era

In the 1970s, Congress passed laws regarding occupational safety (Occupational Safety and Health Act) and employee benefits (Employee Retirement Income Security Act) under its authority granted by the interstate commerce clause. But neither OSHA nor ERISA were intended to interfere with state workers’ compensation laws.

The 1970s also saw an ultimately failed effort to impose federal minimum standards on state workers’ compensation. It was in this era that the term “federalization” and the concerns about the impact of federal laws on state workers’ compensation systems emerged.

Federalization re-emerged as an issue in the 2000s when concerns arose that the costs of workers’ compensation injuries were being shifted onto Medicare, and the federal government tried to fashion remedies to shift the cost back onto the workers’ compensation system. The effect of the Affordable Care Act on workers’ compensation was another federal issue that was hotly debated in workers’ compensation circles.

Finally in President Obama’s second term, OSHA issued many rules about medical care and drug testing  that could have affected workers’ compensation laws. Democratic presidential candidate Bernie Sanders and other elected leaders also wrote a letter to the Secretary of Labor pointing out the failure of state-based workers’ compensation systems.

Conventional wisdom is that the election of Donald Trump paired with a Republican Congress will end the Obama era efforts at federalization of the workers’ compensation system. There is probably a fair amount of truth to this idea, but the Trump era may not spell the end of federalization of workers’ compensation.

In the 2010s “sharing economy,” companies such as Uber and Lyft emerged. The business model of these companies is premised on workers being independent contractors. However, this has created litigation and uncertainty for these companies. In 2015, the Democratic-aligned Brookings Institute hosted a discussion about the “reforming” labor laws for companies like Uber. Though workers’ compensation laws are traditionally state-based laws, there is no constitutional prohibition on designing workers’ compensation systems at a federal level. Unfortunately, it seems as some Democrats could find common ground with Donald Trump and House Speaker Ryan to amend ERISA and the Fair Labor Standards Act to exempt Uber drivers and other sharing economy workers from laws such as workers’ compensation.