Study could be helpful in a brewing battle over workers’ compensation retaliation in Nebraska
A study published by the MIT Review of Economics and Statistics shows states that adopted the public policy exceptions to employment at-will for retaliatory claims related to workers compensation claims lead to a reduction in workplace deaths and lead to overall increases in workplace safety.
The good news is that Nebraska started allowing these claims in 2003 in Jackson v. Morris Communications. The bad news is that a recent decision by the Nebraska Supreme Court could foreshadow the end of these claims.
In Dutcher v. Nebraska Department of Corrections, the Nebraska Supreme Court held that the so-called exclusive remedy provision of the Nebraska Workers’ Compensation Act precluded a state employee from bringing a disability discrimination claim under the Nebraska Fair Employment Practices Act if the disability was the result of a work injury.
Dutcher doesn’t address whether a workers’ compensation claim retaliation claim would be barred under exclusive remedy provisions. The defense bar has pointed to footnote 37 of Dutcher to infer that the Nebraska Supreme Court would address this issue if it was brought to them.
Even if you don’t dig into footnotes, language in Dutcher talking about the “proliferation of failure to accommodate litigation over work injuries” stands in stark contrast to the Nebraska Supreme Court rejecting similar proliferation of litigation arguments in Trosper v. Bag n’ Save. Dutcher would also run counter to a reported federal decision, Clark v. Sarpy County, which cited Trosper to find that failure to reasonably accommodate a work injury would be workers’ compensation retaliation under Nebraska law.
In my mind, the MIT study would be a great addition to any amicus brief in opposition to a management-side challenge to Jackson v. Morris Communications.
Further I also believe the plain language of the Nebraska Fair Employment Practices Act allows for workers’ compensation retaliation.
Neb. Rev. Stat. §48-1114(1)(d) prohibits retaliation for inquiring about, discussing or disclosing information about wages, benefits or other compensation. In my mind this means workers’ compensation for two reasons:
- Neb. Rev. Stat. 48-1229(6) has a very broad definition of wages that includes things like health and disability insurance. While it doesn’t include workers’ compensation, if you adopt 48-1229(6) definition of wages for Neb. Rev. Stat. 48-1114(1)(d), workers’ compensation should count as “other compensation.” I would argue that workers’ compensation which comprises both health and disability insurance is closely related enough to wages as defined by Nebraska law to count as “other compensation.”
- If an employee is denied workers’ compensation benefits for an injury, they will often need to fall back on health insurance and/or disability insurance. Even if a workers compensation claim isn’t rejected or accepted right away, there is still a question, an inquiry if you will, about which employee benefit they should be using to cover the expenses of the injury.
Bluntly, the plain language of 48-1114(1)(d) indicates that workers’ compensation is covered under 48-1114(d)1.
NFEPA arguably also applies if an employee reports a work injury in connection with a safety condition that they reasonably violated some law. If supporters of workers’ compensation retaliation are looking to bolster the public policy arguments in support of workers’ compensation retaliation, they can find support within the NFEPA.
Finally, while courts are starting to narrow what constitutes a protected activity in retaliation cases, they aren’t wholesale throwing out retaliation cases as a cause of action. The MIT study shows the wisdom of the public policy exception for workers’ compensation retaliation in Nebraska and in the rest of the country.