Union-Backed Group Pushes for Better Security at Wal-Mart

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

Recently, a Wal-Mart employee in Norfolk, Nebraska, was cut on the wrist by an intoxicated customer at 2:45 a.m. Unfortunately, these types of incidents are all too common at Wal-Marts, which is why one group is taking action.

The UFCW-backed group, Making Change at Wal-Mart, is pushing for increased security at Wal-Mart in the wake of an investigation by Businessweek that on average, one Wal-Mart a day is hit by a violent crime. The issue of crime at Wal-Mart is a safety issue for employees as well as shoppers.

Wal-Mart’s crime rate is six times higher than its nearest competitor, Target. Security experts attribute this in part to the fact that Wal-Mart stores have less staffing than Target stores, and that Target spends more on security. Experts also attribute Wal-Mart’s higher crime rate to the fact that it stays open 24 hours a day. The recent injury to the Wal-Mart employee in Norfolk, Nebraska, highlights the risk of overnight retail work.

Beech Grove, Indiana, Mayor Dennis Buckley became so fed up with police calls to the Wal-Mart in his town that he had Wal-Mart declared a public nuisance and fined Wal-Mart $2,500 for every police call. Mayor Buckley’s actions underscore the role that local government can play in ensuring the safety and security of retail employees. Convenience-store clerks are also vulnerable to violent crime on the job. Cities like Irving, Texas, and Milwaukee have passed city ordinances mandating security for convenience-store clerks. Both Omaha and Lincoln have city elections coming in a few months, so voters and groups supporting workers should press the candidates on the issue of retail-worker safety.

States, who traditionally oversee workers’ compensation, should consider using their 10th -amendment police powers to protect retail workers. For example, the Indiana Department of Labor did a study documenting violence against convenience-store clerks. Finally, injuries to retail workers through violent crime are covered by workers’ compensation. State workers’ compensation systems need to remain viable so unscrupulous retailers are not able to shift the costs of violent crime against their employees onto taxpayers.

NYTimes: Lower Back Ache? Be Active and Wait It Out, New Guidelines Say

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

Dr. James Weinstein, a back pain specialist and chief executive of Dartmouth-Hitchcock Health System, has some advice for most people with lower back pain: Take two aspirin and don’t call me in the morning.

On Monday, the American College of Physicians published updated guidelines that say much the same. In making the new recommendations for the treatment of most people with lower back pain, the group is bucking what many doctors do and changing its previous guidelines, which called for medication as first-line therapy.

Dr. Nitin Damle, president of the group’s board of regents and a practicing internist, said pills, even over-the-counter pain relievers and anti-inflammatories, should not be the first choice. “We need to look at therapies that are nonpharmacological first,” he said. “That is a change.”

The recommendations come as the United States is struggling with an epidemic of opioid addiction that often begins with a simple prescription for ailments like back pain. In recent years, a number of states have enacted measures aimed at curbing prescription painkillers. The problem has also led many doctors around the country to reassess prescribing practices.

The group did not address surgery. Its focus was on noninvasive treatment.

The new guidelines said that doctors should avoid prescribing opioid painkillers for relief of back pain and suggested that before patients try anti-inflammatories or muscle relaxants, they should try alternative therapies like exercise, acupuncture, massage therapy or yoga. Doctors should reassure their patients that they will get better no matter what treatment they try, the group said. The guidelines also said that steroid injections were not helpful, and neither was acetaminophen, like Tylenol, although other over-the-counter pain relievers like aspirin, naproxen or ibuprofen could provide some relief.

“Many people with chronic back pain tend to shut down, avoiding their usual activities, afraid of making things worse…”

Dr. Weinstein, who was not an author of the guidelines, said patients have to stay active and wait it out. “Back pain has a natural course that does not require intervention,” he said.

In fact, for most of the people with acute back pain — defined as present for four weeks or less that does not radiate down the leg — there is no need to see a doctor at all, said Dr. Rick Deyo, a spine researcher and professor at the Oregon Health and Science University in Portland, Ore., and an author of the new guidelines.

“For acute back pain, the analogy is to the common cold,” Dr. Deyo said. “It is very common and very annoying when it happens. But most of the time it will not result in anything major or serious. ”

Even those with chronic back pain — lasting at least 12 weeks — should start with nonpharmacological treatments, the guidelines say. If patients still want medication, they can try over-the-counter drugs like ibuprofen or aspirin.

Scans, like an M.R.I., for diagnosis are worse than useless for back pain patients, members of the group said in telephone interviews. The results can be misleading, showing what look like abnormalities that actually are not related to the pain.

Measures that help patients get back to their usual routines can help along the way, as Sommer Kleweno Walley, 43, of Seattle, can attest. Last spring, she slipped on the stairs in her house and fell down hard, on her back.

“After a couple of hours I could barely walk,” she said. “I was in real pain.”

She saw a physical therapist, but the pain persisted. Eleven days later, she showed up at the office of Dr. Christopher J. Standaert, a spine specialist at the University of Washington and Harborview Medical Center. She expected to receive an M.R.I., at least, and maybe a drug for pain.

But Dr. Standaert told her an M.R.I. would not make any difference in her diagnosis or recovery and that the main thing was to keep active. She ended up getting anti-inflammatory medication and doing physical therapy. A few months later, her back stopped hurting.

[Read the rest of the NY Times article here.]

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PBS: California Reports Thousands of Workers Exposed to Elevated Lead Levels

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

The highest lead levels were found in the blood of people who work with guns and ammunition, according to the California Department of Public Health. 

More than 6,000 California workers in munitions, manufacturing and other industries have elevated levels of lead in their blood that could cause serious health problems, according to a recent report from the state’s public health agency.

The report, containing the results of tests conducted between 2012 and 2014, comes as the state’s workplace health and safety agency, Cal/OSHA, is considering a major update of its safety standards for workplace lead exposure for the first time in decades. The current standards are based on 35-year-old medical findings, which at the time did not recognize the dangers of even low-level exposure to lead. More recent science shows chronic, low-level lead exposure can cause lasting harm.

“It doesn’t surprise me. This is a huge problem,” said Doug Parker, executive director of Worksafe, a worker health and safety advocacy organization based in Oakland. “Clearly, there haven’t been adequate actions taken” by some employers, he said.

READ MORE: 7 things you didn’t know about lead

Lead is a naturally occurring element. The soft gray metal and its various compounds have been used in many products, including pipes, paint, batteries, ammunition, industrial equipment and gasoline. Workers can be exposed to lead in the form of dust, either inhaled or swallowed, or by handling lead-tainted items.

Most public health actions have focused on protecting children from lead exposure and quickly treating those who are exposed, since the metal can severely impair their development.

But adults also can face serious health problems from lead exposure, including heart disease, reproductive problems, cognitive difficulties and kidney failure. Some workers exposed to lead dust in the workplace have unwittingly carried it home on their clothes, exposing their families to it.

The authors of the report examined data from the California Occupational Blood Lead Registry, which tracks workplace exposures. From 2012 to 2014, 38,440 workers had their blood tested for lead, and 6,051 workers were identified with an elevated level of 5 or more micrograms of lead per deciliter (about 3.3 ounces) of blood. Most of these workers were men between the ages of 20 and 59 and had Hispanic surnames. Many lived in Southern California, particularly in Los Angeles, Riverside and San Bernardino counties.

The California Department of Public Health, which released the report last month, did not make an expert available for comment.

About 14,000 of the workers had two or more blood lead tests, which showed about a fifth of them had elevated blood lead levels, according to the report. More than one elevated blood test suggests chronic exposure linked to health problems, the researchers noted.

[Read the rest of the PBS article here.]

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Fighting to protect workers rights

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

Workers compensation law is slightly more than 100 years old. It has become a fundamental protection for workers and their families. Sadly, insurance and business interests have been attacking this basic law for more than 25 years. The effort has been nearly continuous with legislative and administrative proposals aimed at lower benefits to workers and their families  while raising profits for business and insurance.

            This law firm believes we have an obligation to fight these attacks on behalf of our clients and their families.  The past week is an example.  Rod Rehm spoke to a group of lawyers  on how to defeat these attacks at the Northwest Regional Conference of the Workplace Injury Law Advocacy Group www.wilg.org held in Whitefish, Montana. The event was attended by Michael Gruber, Brooklyn, NY, current President of WILG, Amie Peter, Edmonds WA, President-elect of WILG, Chuck Davoli, New Orleans, LA past President of WILG and chaired by Tom Murphy of Great Falls, MT along with a hearty group of workers compensation lawyer from the Northwest part of the U.S.A.

            It was great to share information with and learn new and better ways to win our cases and court and continue to defend the law in the legislature. WILG is a great organization fighting for workers 24/7/365 all across the USA.

            Jon Rehm testified at the Business and Labor Committee of the Nebraska Legislature on behalf of the Nebraska Association of Trial Attorneys, NATA,  www.nebraskatrial.com concerning efforts to limit drug prescriptions for our clients. Our office and NATA is concerned that efforts to attack opioid addiction will harm our clients unless written carefully. Protecting good medical care for injured workers is more important than saving prescription costs for business and insurance under the guise of attacking addiction.

            Testifying in the legislature is a regular part of being a lawyer at Rehm, Bennett and Moore. We actively work to protect workers’ rights in every forum we can.

Kansas Supreme Court Decides Whether Undocumented Immigrants Are Entitled To Workers’ Compensation Benefits

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

Are undocumented immigrants entitled to workers’ compensation benefits in Nebraska?

Recently, the Kansas Supreme Court examined the same question that has been previously answered by the Nebraska courts.

The short answer is, yes. Undocumented workers are entitled to most workers’ compensation benefits under Nebraska law. The exception is that undocumented immigrants are not entitled to the vocational rehabilitation benefit because the worker is not legally permitted to be in the country.

To some people, Nebraska law and this Kansas decision make sense, but unfortunately many people believe that undocumented workers should not be entitled to work comp. This argument fails for the following reasons:

  1. If someone is injured at work and needs to seek medical treatment, it must be paid somehow. If it is not paid by workers’ compensation (even though the injury occurred at work), the cost of that treatment will be passed to the medical providers and the general-public. The employer will get away scot-free while everyone else would share the burden of mounting healthcare costs.
  2. Employers should not get a benefit of hiring undocumented workers over citizens or documented workers. As stated above, if the employer does not have to pay workers’ compensation benefits for an injured, undocumented worker, the employer will be encouraged to hire undocumented workers over others as cost-savings. It is the employer’s responsibility to hire documented workers, but if it means the cost-savings of not having to pay work comp benefits, you can bet that employer will try to hire undocumented workers over others.
  3. Similar to the previous reason, employers would be discouraged from taking safety measures to ensure the safety of its workers if it knows that it won’t be required to pay for undocumented workers’ injuries. This would make the workplace more dangerous for all workers.
  4. Regardless of citizenship, an injured worker has an inalienable right to be treated for work injuries simply based on the fact that his/her job has made money for that employer. This is the whole point of the workers’ compensation system: to provide a quick (relatively speaking) and efficient way to get medical treatment and compensation for any worker that is injured while making money for that employer. Without the beneficiary of the work that cause the injury being required to pay work comp, this burden would inevitably be pushed to tax payers in one form or another. In other words, taxpayers should certainly want undocumented immigrants to get workers’ compensation benefits.

Major Employer Questions Use Of Drug Formularies In Workers’ Compensation

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

Drug formularies are touted as a way to fight prescription drug abuse and contain prescription drug cost. But one major Nebraska employer appears to be questioning whether drug formularies really contain prescription costs.

In a fiscal note for LB 408, a bill introduced in the Nebraska legislature to create drug formularies for opioid pain medications in workers’ compensation claims, the City of Omaha expressed concern that the inability to substitute for generic medication in a drug formulary could lead to higher prescription costs.

The City of Omaha was echoing widespread concerns about the possibility of conflict of interests in drug formularies. Those concerns were explained by me in a blog post published last December. In short, drug formularies are administered by pharmacy benefit managers. Pharmacy benefit managers make money by negotiating discounts from drug manufacturers. This gives pharmacy benefit managers incentive to put more expensive drugs on drug formularies because they can negotiate a more lucrative discount than they could for a less expensive generic drug.

LB 408 was held in committee by the Business and Labor committee so it is unlikely it will be considered in this legislative session. Opioids abuse is a topic of high interest for political leaders so drug formularies as a way to reduce opioid use will likely be discussed further in Nebraska.

The City of Omaha has a workforce this is more heavily unionized than most other workplaces in Nebraska.  In some instances, labor and management will collectively bargain how some aspects of a workers’ compensation program is to be administered. Supporters of organized labor originated the idea of “labor pluralism” during the New Deal and Post-War era. (4) Labor pluralism means that government should minimize interference between the labor-management relationship.   In a unionized workplace, labor and management have a complicated relationship that is both cooperative and confrontational depending on the circumstances. A mandate from the state requiring the use of drug formularies could be as undermining labor-management relations when a labor and management have bargained about the administration of workers’ compensation benefits.

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.

Look To Your Co-Workers Before Your Boss When Trying To Accommodate An Injury Or Medical Condition

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

Employees with an injury or medical condition that prevents them from doing  parts of their job ought to consider asking for help  from their co-workers  first before they talk to management about how to accommodate that medical condition or injury.

Under the Americans with Disabilities Act, and most parallel state laws, a disabled employee and their employer are supposed to engage in an “informal interactive process” to see if the employee’s disability can be reasonably accommodated. The process is supposed to be flexible.

In reality often times the interactive process can be an adversarial process where legal counsel for the employer,  HR,  employee health and risk management bureaucrats attempt to force working people to fill out complicated paperwork and create a paper trail justifying terminating an employee.

But if an employee can work with a co-worker or co-workers to shift and trade tasks that they can’t do because of a disability, then the employee has accommodated their own disability without having to deal with a squad of paper pushers who know little about how an employee actually does their job.

The other thing an employee does when they work with their co-workers to accommodate their own disability without interference from management is that they engage in what is called a “protected concerted” activity. So in addition to having legal protections under the Americans with Disabilities Act, the employee has protections under the National Labor Relations Act (NLRA) as would  their co-workers.

Employees are faced with judges and government agencies who are increasingly sympathetic to management. But workers are re-discovering the power of concerted action. New York taxi drivers struck in protest of President Trump’s proposed Muslim Ban. Workers at Comcast walked out of work in protest of this policy as well.

I realize that many of my prospective and current clients may support Donald Trump and his policies. But regardless of your political views you can still ask for and provide mutual aid and support from your co-workers if you or one of them has a disability that keeps you or them from doing certain tasks on the job. This idea of mutual aid and support for co-workers on the job has long been an important part of workplace rights and will probably grow increasingly important and as courts and government agencies become increasingly supportive of management.