Category Archives: employment law

Workplace Safety and the Legacy of Martin Luther King, Jr.

Posted on January 12, 2017 by Jon Rehm

Rev. Dr. Martin Luther King Jr. speaking. (Photo by Julian Wasser//Time Life Pictures/Getty Images)

“It was horrible,” said the woman.

One minute she could see a sanitation worker struggling to climb out of the refuse barrel of a city garbage truck. The next minute mechanical forces pulled him back into the cavernous opening. It looked to her as though the man’s raincoat had snagged on the vehicle, foiling his escape attempt. “His body went in first and his legs were hanging out,” said the eyewitness, who had been sitting at her kitchen table in Memphis, Tennessee, when the truck paused in front of her home. Next, she watched the man’s legs vanish as the motion of the truck’s compacting unit swept the worker toward his death. “The big thing just swallowed him,” she reported.

Unbeknownst to Mrs. C. E. Hinson, another man was already trapped inside the vibrating truck body. Before vehicle driver Willie Crain could react, Echol Cole, age 36, and Robert Walker, age 30, would be crushed to death. Nobody ever identified which one came close to escaping.

The horrific deaths of Cole and Walker on Feb. 1, 1968, set off the Memphis sanitation workers’ strike, where 1,300 mostly African-American public employees struck to protest poor working conditions, including the defective garbage truck that crushed Cole and Walker. Martin Luther King Jr. gave his famous “I’ve Been to the Mountaintop” speech in support of the striking sanitation workers in Memphis the night before he was assassinated.

On Monday, Martin Luther King Jr.’s birthday is celebrated as a holiday. But the rightful veneration of Dr. King should not, for the lack of better terms, wrongfully sanitize or whitewash the fact that what he fought for would be opposed by many who invoke his legacy today. The Memphis sanitation strikers are asking for the same thing that striking fast food and service workers are asking for in the Fight for 15 campaign. Most establishment types and so-called moderates in Memphis refused to support the striking sanitation workers. Today’s so-called moderates argue that paying employees a living wage is too radical and counterproductive. History has a way of repeating itself.

Nearly 50 years later, I still represent sanitation workers who are injured from defective equipment. However, bloody crush injuries like the ones that killed Cole and Walker are much less common. Part of the reason for the increase in workplace safety over the last 50 years was the passing of the Occupational Safety and Health Act. Dr. King was willing to risk bodily harm and ultimately ended up being killed supporting workers who were protesting unsafe work conditions. The passage of OSHA is a small but important and overlooked part of Dr. King’s legacy. History is repeating itself again as the business establishment applauds the expected rollback of OSHA enforcement under expected future Labor Secretary Andy Puzder.

Dr. King also deserves credit for his role in passing laws like Title VII that prohibited discrimination against African-Americans, which has allowed an increasing number of African-Americans to join the professional class and otherwise realize their potential as human beings. Dr. King’s legacy can also be seen in the expansion of rights for disabled Americans, and the fact that gays and lesbians are able to get married, and the real possibility that Title VII may end discrimination against lesbian, gay, bisexual and transgender people.

But by some economic measures, African-Americans are worse off now than they were 40 years ago. This fact can likely be attributed to overall increases in economic inequality over the last 40 years. The U.S. Department of Labor pointed out in a recent study that the gutting of state workers’ compensation laws has exacerbated inequality. Lawyers, legislators, academics and pundits have gradually forgotten about the risks faced by workers like Echol Cole and Robert Walker and how civil rights leaders including Martin Luther King Jr. saw the fight for workplace safety as a matter of basic human dignity and integral to the fight for civil rights.

The offices of Rehm, Bennett & Moore and Trucker Lawyers will be closed in observance of the holiday on Monday. We will re-open at 8:30 a.m. Central Time on Tuesday, Jan. 17. We encourage readers to think about Martin Luther King Jr. on the federal holiday and every day and continue to be both motivated and challenged by his words and works.

A High-Tech Update on a New Black Friday Tradition

Posted on November 21, 2016 by Jon Rehm

OUR Walmart has been protesting working conditions at Wal-Mart on Black Friday since 2011. This year, OUR Walmart will forego protests and instead promote the WorkIt app, which uses IBM’s Watson technology to inform Wal-Mart employees about their rights at work.

Walmart is warning employees against using the app. If Walmart were to terminate an employee for downloading the app, this would likely be an unfair practice under the National Labor Relations Act, and it would likely be unlawful retaliation under Nebraska law as well.

The positives of WorkIt

WorkIt uses technology to allow workers to push back against management. Traditionally, this has been the role of labor unions. But the application essentially cuts out that middleman. Organized labor has had great difficulty organizing at Wal-Mart, but if the app serves some of the main functions of a union, it is a benefit for Wal-Mart employees.

Nebraska’s junior senator, Ben Sasse, decided that he would moonlight as an Uber driver in Nebraska a few Saturdays ago. In a press release, he touted the benefits of the “disintermediation” of the workforce. Disintermediation is a fancy term for cutting out the middleman. Uber cuts out the middleman by connecting drivers directly with those needing a ride through an app. Of course, Uber thinks that the user of the app can cut out the need for things like fair-employment protections, unemployment insurance and workers’ compensation coverage for their drivers as well. Most employee advocates have concerns about this relationship. If nothing else, the WorkIt app shows that technology is a tool to expand workplace protections even as the use of technology erodes workplace protections.

Possible downsides to WorkIt

Apps and other computer programs are only as good what the programmers input into the programs. Wal-Mart employees probably do know Wal-Mart policy, but other employee-protection laws, especially workers’ compensation laws, vary from state to state. The WorkIt app may not be able to help people with state-specific questions.

Furthermore, Wal-Mart isn’t under any obligation to follow its own policies in a non-union workplace. Failure to follow those policies could be evidence of wrongful conduct, but it isn’t unlawful per se. In short, knowing company policies can be helpful, but management has wide discretion in how it interprets those policies. That’s where having a union steward or representative is helpful in a dispute with management, as the steward will have a better idea of how those policies have been interpreted in the past.

Finally, while an app is helpful, it somewhat undercuts the idea of collective or concerted activity, which forms the basis of unionization. Instead of reaching out to other employees about common concerns, just relying on an app could reinforce the strategy of taking individual grievances to Wal-Mart through what they call their “Open Door Policy.” Apps can reinforce the atomized, overly individualized relationship that people have with technology and their employers.

But in the wake of the recent elections, some veteran union organizers are calling for a radical rethinking of how to organize workers. WorkIt may be part of that new tool kit to organize workers in the 21^st century. Apps are already part of workers organizing for rights. In China, workers are using the WeChat app to organize independent unions. Hopefully U.S. workers will start using apps like WorkIt and existing apps to protect themselves in the workplace.

Department of Labor Weighs In on New Age of Salary Servitude for ‘Executives’

Posted on November 10, 2016 by Roger Moore

Most of the U.S. workforce has the right, provided by the Fair Labor Standards Act, to be paid overtime for working more than 40 hours in a week. Before the federal government set rules for overtime, most employees worked longer hours, and millions of Americans worked six or seven days a week, as Chinese factory workers do today. Salaried workers also have the right to be paid a premium for overtime work, unless they fall into an exempt category as a professional, an administrator, or an executive. Exempt employees must be skilled and exercise independent judgment, or be a boss with employees to supervise. However, many companies have worked to get around these overtime rules by classifying employees like cooks, convenience store employees or restaurant workers as “managers,” “supervisors,” or “assistant managers or supervisors,” so that their employer can deny them overtime under this exception.

In May 2016, the Department of Labor issued its final rule establishing a new minimum salary threshold for the white-collar exemptions (executive, administrative and professional) under the Fair Labor Standards Act. This new threshold of $913 per week ($47,476 annualized) more than doubles the current minimum weekly salary threshold of $455 per week ($23,660 annualized). While that may seem like a huge increase, the old threshold level is only $2 a week above the poverty level for a family of four. Twenty-one states have filed suit to challenge this rule, citing the rule will force many businesses, including state and local governments, to unfairly and substantially increase their employment costs.

The old rule allowed companies to put employees on “salary” at a low rate and require them to work sometimes significant overtime. The fact that so many government entities are concerned about this new rule substantially increasing their employment costs underscores the extent to which even government entities have taken advantage of employees in this fashion. Can you imagine earning $25,000/year and having to work 50, 60 or 70 hours a week? Even at 50 hours a week, that equates to an hourly wage of only $8.01!

In the first year, the department estimates that the new rule may affect, in some manner, over 10 million workers who earn between $455/week and the new $913/week threshold.

The median worker has seen a wage increase of just 5 percent between 1979 and 2012, despite overall productivity growth of 74.5 percent (Mishel and Shierholz, 2013), according to the Economic Policy Institute. One reason Americans’ paychecks are not keeping pace with their productivity is that millions of middle-class and even lower-middle-class workers are working overtime and not getting paid for it. Before this rule change, the federal wage and hour law was out of date. This change purports to correct this modern day servitude that the law – for the last 30 years – has carved out a huge exception, allowing workers to be taken advantage of simply by assigning them a title and paying them a salary.

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

Posted on November 7, 2016 by Jon Rehm

President Barack Obama signs the “Fair Pay and Safe Workplace” executive order in the Eisenhower Executive Office Building South Court Auditorium, July 31, 2014. The President is joined on stage by Labor Secretary Thomas Perez as well as employers who support fair labor practices, workers who have seen firsthand the effects of workplace violations, and advocates who have worked to improve fair pay and safety standards. (Official White House Photo by Pete Souza)

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.

New Employees Face Higher Risk, Harder Consequences for Work Injuries

Posted on October 20, 2016 by Jon Rehm

As the holiday season approaches, many people will take on second or holiday jobs. Workers taking on such jobs will be taking on a heightened risk of injury. One academic study showed that temporary employees are two to three times more likely to be injured. An Omaha-based construction company found that 65 percent of lost-time injuries took place in the first 90 days of employment (this link is a downloadable presentation). This blog post will describe some causes of injury and then talk about some particular challenges faced by new employees who are injured.

Slips, trips and falls are the most common cause of work injury. This hazard can be particularly acute during the winter in retail and restaurant jobs because customers will track in snow and other moisture. Strain from lifting is also a common injury. Warehouse work is in high demand over the holiday season, and one risk particular to such work is the risk of falling pallets or boxes.

One challenge that new employees face when they get hurt is how to calculate their disability benefits. A worker may not have been employed long enough for an employer and/or insurer to accurately determine how much the employee should be paid in benefits after getting hurt. One approach may to be base this benefit rate on pay of similarly situated co-workers. If you believe you are getting shortchanged on benefits because you were a new employee when you were hurt, you should contact a lawyer.

Workers’ compensation is supposed to pay you benefits regardless of your fault in the injury. But fault can still play a role in work-injury claims. If your injury was the fault of someone other than your employer or a co-worker, then you might be able to pursue a negligence case against that party. Unfortunately, some employers have tried to reintroduce fault into the workers’ compensation system, to the detriment of newer employees. Some employers will fire or discipline employees who have preventable or lost-time accidents during the beginning of their employment. In my view, such policies amount to employers almost admitting that they are retaliating against employees who get hurt at work. If you have been disciplined under such a policy, you should contact an attorney.

Post-Injury Drug Test? OSHA Says Not So Fast

Posted on October 17, 2016 by Jon Rehm

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.

Is the Rule of Law Under Attack?

Posted on September 19, 2016 by Jon Rehm

Chinese Rights Lawyers Wang Yu (top) and Bao Longjun (bottom)

Our colleague in North Carolina recently wrote a blog post about a terrorist attack on lawyers in Pakistan that killed 60 lawyers. It was an attack on the rule of law. A less bloody, but no less brutal, campaign against the rule of law is taking place in China under the increasingly authoritarian rule of Chinese leader Xi Jinping.

Jinping has targeted so-called “rights lawyers,” or lawyers who, like United States’ plaintiffs’ lawyers, represent individuals against major institutions such as corporations and the government. In rhetoric echoing attacks on U.S. trial lawyers, Chinese rights lawyers have been described as “abusing courts to create personal gain and ‘social chaos’.”

Chinese rights lawyers make up a small part of the 270,000 lawyers in China, but in China, there also so-called “barefoot lawyers” who aren’t lawyers at all but are usually self-taught workers and peasants who have learned the law. Barefoot lawyers often advocate for employees in industrial work injury and wage-dispute cases. These barefoot lawyers have frequently been victims of these abuses as well. China’s industrial workforce is similar to the U.S. workforce in the respect that many workers are vulnerable to exploitation because of their legal status. In the United States, undocumented immigrants are vulnerable on the job. In China, residents of rural provinces who move to industrial urban provinces have a lesser legal status in those provinces because of the hukou system. Barefoot lawyers often come from the same rural background as their clients. Like the better educated and credentialed “rights lawyers,” barefoot lawyers are also subject to harassment and repression from the state.

Though U.S. lawyers are generally free from official harassment, some corporate litigants have resorted to totalitarian tactics against plaintiffs’ attorneys. U.S. District Judge Jed Rakoff smacked down Uber for hiring a former CIA agent to investigate an attorney prosecuting a class action suit against the ride-hailing company. Investigation tactics included using fake reporters to try to probe the plaintiff’s attorney for personal information.

So while the rule of law is much more secure in the United States than it is in many other countries, it is still threatened by overheated rhetoric and underhanded tactics.

How First Responders Would Be Treated if 9/11 Happened in Nebraska

Posted on September 15, 2016 by Brody Ockander

Sept. 11 was tragic for the victims who died at ground zero after the attacks on the World Trade Center. But, the lasting effects of the dust and particulates that filled the air after the collapse of the towers have caused ongoing health issues for numerous other victims: first responders who were not killed in the initial collapse of the buildings.

Fortunately, the federal government came to the aid of these first responders by enacting the James Zadroga Act, which provides free testing and treatment for first responders of the 9/11 attacks. However, had this act not been enacted, how would these workers, who have developed health problems from working at ground zero, have been treated under the Nebraska Workers’ Compensation Act?

First, the ailments developed by the first responders would be treated as occupational diseases under Nebraska law. If the disease or ailment of the first responder is shown to be a result of the exposure while working at ground zero, the treatment and indemnity would be covered like any other Nebraska Workers’ Compensation claim.

If the first responder died as a result of the occupational disease, under Nebraska law, the surviving spouse would be entitled to death benefits under the Nebraska Workers’ Compensation Act.

The biggest gap in workers’ compensation coverage under Nebraska law for occupational diseases occurs when the injured worker (or in this case, the first responder) does not develop symptoms or the disease until later in life. In a situation like that, if the occupational disease first manifests (or becomes an injury) after the injured worker has retired for unrelated reasons, the injured worker would be left without indemnity benefits. In other words, the injured worker could get no workers’ compensation money if he or she was retired when the disease showed up. Further, if the injured worker dies as a result of the occupational disease, but is retired at the time the disease becomes an injury, his or her surviving spouse would not be entitled to any money either. See Olivotto v. DeMarco Bros. Co., 273 Neb. 672 (2007): the widow whose husband died from asbestos exposure was not entitled to indemnity because her husband had been retired for 23 years when mesothelioma manifested.

Thus, if 9/11 happened in Nebraska, first responders who develop an occupational disease later in life might not be fully covered under workers’ compensation laws without some sort further government intervention like the James Zadroga Act.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Category Archives: employment law

Workplace Safety and the Legacy of Martin Luther King, Jr.

Department of Labor Weighs In on New Age of Salary Servitude for ‘Executives’

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

New Employees Face Higher Risk, Harder Consequences for Work Injuries

Post-Injury Drug Test? OSHA Says Not So Fast

Is the Rule of Law Under Attack?

How First Responders Would Be Treated if 9/11 Happened in Nebraska

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