Category Archives: employment law

First Responders, Retaliation and Labor Law

Posted on September 12, 2016 by Jon Rehm

First responders and correctional employees aren’t immune from retaliation from their employers when they turn in work injuries for the unique hazards that they face. However, most first responders, law enforcement and corrections employees have some additional job protections against retaliation. This post is meant to give first responders, law enforcement and corrections employees a basic overview of the job protections they have as union and public sector employees. Those rights can be summed up in three words: Weingarten, Garrity and Loudermill.

Weingarten Rights

Weingarten rights are named after the Supreme Court decision that holds that union members have a right to have a union official present in a disciplinary meeting with supervisors or a meeting that could lead to discipline. Though Weingarten doesn’t apply to public sector unions, most public sector unions, including NAPE/AFSCME in Nebraska, make Weingarten rights part of their collective bargaining agreement.

Weingarten rights can be trampled on when aggressive employers claim they just want to talk to employees rather than subject employees to the third degree. This can be especially prevalent in corrections and law enforcement where supervisors are trained in interrogation techniques.

If you have been subject to an interrogation like this, you need to let your union representative know right away.

Garrity Rights

Garrity rights give public sector employees, regardless of whether they are in a union or not, the right to not incriminate themselves in an investigation that could lead to discipline. Employers will give a Garrity warning similar to a Miranda-type warning. In my experience, Garrity rights can be a bit dubious. Employee misconduct that would justify termination doesn’t always rise to the level of anything remotely illegal. This is especially true if an employer is trying to manufacture evidence to retaliate against a worker. But under Garrity, an employee can be terminated for refusing to answer questions. So employees may feel compelled to answer hours of questions from trained law enforcement officials for alleged misconduct that, even if true, would not rise to anything illegal. This can be a dangerous proposition because such questioning may create the appearance of dishonesty on the part of the employee. Especially in the context of law enforcement or corrections, dishonesty can be a factor that allows an employer to skip the normal progressive disciplinary procedures.

Again, employees should reach out to their union representative if they are faced with this situation.

Loudermill Rights

Loudermill rights compel public employers to give some explanation of why they are terminating an employee and give the employee some opportunity to explain why she or he should not be terminated. (7) Loudermill applies to all government employees, not just union employees. Though Loudermill gives additional protections to what typical at-will employees have, in substance, Loudermill doesn’t afford a lot of protections. In many cases, the decision to terminate has already been made, and feedback from an employee may harm the employee’s chances of winning at a personnel board, arbitration or a wrongful-termination case.

Again, employees should be reaching out to their union representative if they are subject to what is called a Loudermill hearing.

Personnel Board and Arbitration Hearings

Government employees can usually appeal terminations to a personnel board, such as the Nebraska State Personnel Board, or have a termination heard by an arbitrator if the worker is represented by a private union. These hearings are easier for employees to win than wrongful termination cases because generally the employer has the burden to show there was just cause to terminate the employee. In civil court, the employee has the burden of proof that the termination was unlawful. Those hearings can also generate evidence that can be helpful in wrongful termination cases. In many cases, the union will pick up the cost of a personnel board hearing or arbitration.

This post has repeatedly mentioned the importance of involving a union representative and the benefits to employees of a union contract. Nebraska is what is called a “right-to-work state,” which means that employees covered under a union contract cannot be forced to pay union dues. However, if workers do not pay dues, unions may not have the resources needed to fight for their members. The opinion of this firm is that unions in Nebraska, like NAPE/AFSCME, do a good job of fighting for their members, so we would encourage public employees in Nebraska to pay their union dues.

Are Graduate Students and Teaching Assistants Employees in Nebraska?

Posted on August 25, 2016 by Jon Rehm

On Tuesday, the National Labor Relations Board ruled that teaching assistants and graduate students at private universities are employees. Though this doesn’t mean that teaching assistants and graduate students at public universities are employees, teaching assistants and graduate students at public universities may have recourse under Nebraska law to be paid wages.

Neb. Rev. Stat. 48-1203 allows student-learners enrolled in “a bona fide vocational training program” to be paid 75 percent of the state’s minimum wage. This wage rate would be $6.75 per hour. The problem with this language is that “bona fide vocational training program” and “student-learners” are not defined under the Nebraska Wage and Hour Act. The ambiguity could work to the advantage of teaching assistants and graduate students at public universities in Nebraska. Generally, wage and hour are interpreted to cover as many people as possible. Additionally, the fact that the federal government states that graduate students and teaching assistants are employees could be persuasive.

Wage and hour issues like pay for teaching assistants and the use of unpaid internships are not the only wage and hour issue facing young people. Nebraska’s minimum-wage hike has raised some other issues relevant to younger workers.

Neb. Rev. Stat 48-1203.01 allows for a 90-day training rate that is 75 percent of the federal minimum wage, or $5.44 per hour. That training period can be extended for 90 days upon approval of the Nebraska Department of Labor if the on-the-job training requires obtaining “technical, personal or other skills” necessary for employment. While the $5.44 rate appears to require approval for the second 90-day period, it is not clear that such approval is needed for the first 90-day period.

Additionally, Nebraska did not raise its tipped minimum wage of $2.13 per hour when it raised the minimum wage. An effort to raise the tipped minimum failed in 2015. Under Nebraska law, tipped employees, like servers, are supposed to be paid the state minimum-wage rate, though this does not always happen. The practice of tipping has been criticized as being based on practices under slavery and for encouraging sexual harassment of servers. However, payment through tips is still allowed. Fortunately, servers in Nebraska are entitled to be paid $9 per hour rather than the $7.25 federal minimum wage.

Nebraska also allows certain disabled workers to be paid less than the minimum wage. This is similar to the federal law that was criticized by former Iowa Senator Tom Harkin recently in a speech at the Democratic National Convention.

After thinking about Nebraska’s laws regarding youth and training subminimum wages, I have a few conclusions. First of all, the vocational training minimum wage may be another route for interns to be compensated. Second, though the Nebraska legislature appears to be against expanding Nebraska’s minimum-wage law, cities can implement their own minimum-wage laws. For example, Seattle passed a $15 per hour minimum-wage law. While Lincoln isn’t Seattle, Lincoln city councilwoman Leirion Gaylor Baird appeared in commercials supporting the ballot initiative that raised Nebraska’s statewide minimum wage to $9 per hour, so perhaps a Lincoln municipal ordinance addressing unpaid internships would be politically realistic.

Should You be Paid for Your Unpaid Internship?

Posted on August 22, 2016 by Jon Rehm

Colleges and universities are starting the school year already. Increasingly, internships are part of many students’ educations. Interns are also an important part of the labor force in college towns like Lincoln, Nebraska. But the use of interns raises legal and policy questions, because many internships are unpaid. The U.S. Department of Labor’s Wage and Hour Division provided a clear explanation of when they think interns should be paid. If the internship meets the following qualifications, then interns are not required to be paid. If the internship does not meet these criteria, then interns are required be paid the federal minimum wage and overtime as required by the Fair Labor Standards Act (FLSA).

“The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
The internship experience is for the benefit of the intern;
The intern does not displace regular employees, but works under close supervision of existing staff;
The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
The intern is not necessarily entitled to a job at the conclusion of the internship; and
The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.”

In short, the more the internship is structured around an actual educational or classroom experience, the less likely interns will be covered by the FLSA. The more it appears that employers are using unpaid interns as substitutes for paid workers, the more likely it is that internship will be covered by the FLSA.

Unpaid internships have often been criticized for exacerbating inequality, because unpaid internships are required in many fields, and only relatively affluent students can afford to work to work for free. Some economists also believe that the rise of unpaid internships has been made possible by lack of enforcement of wage and hour laws.

So if you are working an unlawful unpaid internship, then you can file a suit under the FLSA. However, this limits you to wages paid at the federal minimum wage rate of $7.25 per hour. Many states also have state wage and hour laws that differ from federal law. One advantage of filing under the Nebraska Wage and Hour Act is that the Nebraska Wage and Hour Act has criminal penalties for employers who violate the act. Criminal penalties often give employers an incentive to settle cases to avoid the criminal penalty. Nebraska also raised its minimum wage to $9 per hour. An unanswered question is whether Nebraska courts would let unpaid interns sue under Nebraska law for the higher minimum-wage rate.

The Nebraska Wage and Hour Act provides some exemptions for religious, nonprofit, educational, and charitable organizations, as well as for volunteers of those organizations. I would anticipate that exemption could very well be made to be a legal defense in wage and hour actions involving interns in Nebraska. The issue of pay within the nonprofit sector has become a hot topic among some voices in the nonprofit sector. I agree with voices within the nonprofit sector that expansion of the overtime exemption and the increase of the minimum wage in some states is good for the nonprofit sector, because it helps the people who nonprofits serve.

Nebraska’s minimum wage hike has also raised some questions about youth and training wages that will be addressed in another post.

What Does this Improper Medical Treatment Sanction from OSHA Mean?

Posted on August 8, 2016 by Jon Rehm

For the first time ever, the Occupational Safety and Health Administration recently sanctioned a Pilgrim’s Pride chicken processing plant for providing improper medical treatment for employees suffering from overuse injuries. While the hazards of meatpacking work to employees is common knowledge and the packing industry is frequently sanctioned for unsafe work practices, the sanction against Pilgrim’s Pride for failing to provide medical care to their workers in Florida indicates OSHA is opening a new front in the battle for a safe workplace.

While OSHA’s sanctioning Pilgrim’s Pride for providing inadequate medical care to their injured workers is novel, their action is consistent with law that states access to prompt and appropriate medical care is crucial to pursuing a workers’ compensation claim. OSHA sanctioned Pilgrim’s Pride for failure to make timely and proper referrals to specialists for orthopedic injuries when employees sought treatment at company first-aid or nursing stations. According to OSHA, delays in treatment can lead to permanent injuries.

The fact that OSHA deems inadequate medical care to be a violation of its regulations could also mean that employees have a statutorily protected right to oppose inadequate medical care. In Nebraska, this would mean that employees could possibly sue their employers under the Nebraska Fair Employment Practices Act. Celeste Monforton, a professor of public health at George Washington University, noted in her post that employers use company health clinics not only to delay treatment but to discourage employees from seeking medical care. Some employers go so far as to discipline employees who do not get permission from their employer to seek outside medical treatment. A recent case in an Illinois federal court stated such policies were illegal.

While Nebraska does not have any case law similar to Illinois about such policies, there is a strong argument to make that such policies would be illegal under Nebraska law and under the law of any state that prohibits retaliation against employees for filing workers’ compensation claims. Policies that require notification and permission to seek medical treatment from employers could also run afoul of Nebraska’s laws allowing employees to choose their own doctors. One Nebraska court has hinted that the right to pick a doctor is a legally protected activity.

Monforton also pointed out that Pilgrim’s Pride could be committing medical malpractice by failing to provide proper care and having nurses treat injured employees without proper medical supervision.

However, packinghouses have some reason to believe that they are immune from medical malpractice suits filed by their employees against their employee health nurses. The legal shorthand for this is called the exclusive remedy. In practice, this means that an employer who provides medical treatment in a negligent manner to an employee who is treating for a work injury can only be sued in workers’ compensation court.

Of course, there are some ways around the exclusive remedy for medical care. The first exception would be that if employee health was outsourced. This would allow an employee to sue that provider directly and could also allow for a civil conspiracy or civil RICO claim.

There may also be other exceptions as well. For example, Nebraska has a Meatpacking Industry Workers Bill of Rights that states that workers employed at covered meatpacking houses have a right to a safe workplace and the right to seek benefits, including workers’ compensation. If an employer does not provide adequate medical care or provides negligent medical care, that could certainly violate the public policy behind the Meatpacking Industry Workers Bill of Rights and warrant a tort case against the packinghouses under the public policy of the state of Nebraska.

Disability Rights Take Center Stage at Democratic Convention

Posted on July 28, 2016 by Jon Rehm

Former Sen.Tom Harkin, D-Iowa, called for the elimination of the subminimum wage for certain disabled workers Tuesday afternoon at the Democratic National Convention. Harkin’s remarks followed two speeches about coping with disabilities on Monday night by disability advocate Anastasia Somoza and recording artist Demi Lovato as Democrats chose to highlight the 26^th anniversary of the Americans with Disability Act.

The ADA isn’t normally a hot topic of discussion during political campaigns, but that law, state disability discrimination laws and other related laws will surely be affected by the fall’s federal and state elections. The presidential race will garner the most media attention. The presidential race is important because agencies like the U.S. Department of Labor and commissions like the Equal Employment Opportunity Commission will affect how the ADA is interpreted and enforced. Federal judicial appointments also impact how the ADA and parallel state laws are interpreted.

But disability discrimination laws are also affected by congressional and state races. Here are at four points to keep in mind when thinking about disability discrimination laws during this campaign season:

1. Disability rights have traditionally been a bipartisan issue. Both the Americans with Disabilities Act and the ADA Amendments Act of 2008 were passed by a Democratic Congress and signed by Republican presidents. A reader could assume that because of toxic partisanship that little progress will be made on disability rights, but that you could also infer that disability rights are so important that they could transcend partisanship even in a toxic political environment. This more optimistic view is bolstered by a study done by the Census Bureau, showing one in five Americans has a disability, so there is strong potential support for laws that help that the disabled.

2. Disability discrimination laws are a budget issue. In his speech, Sen. Harkin pointed out that 70 percent of disabled Americans are not working.Part of the reason that Republicans support disability anti-discrimination laws is that they help people maintain employment. Furthermore, the public accommodation sections of the ADA allow for disabled people to access employment through accessing transportation. The expansion of the Social Security Disability Insurance program has been a controversial issue. This increase in SSDI applications has partially been driven by the decline of workers’ compensation protections (see below). However, the purpose of the ADA was undercut in the 1990s and 2000s by the federal judiciary, which necessitated the ADAAA of 2008. It would be reasonable to assume that this misinterpretation of the ADA also helped drive the increase of SSDI applications.

3. Disability discrimination laws impact workers’ compensation laws. The Labor Department has indicated that 80 percent of the costs of work injuries are born either by government programs, private insurance or by taxpayers. In part, this is the result of a bipartisan and sustained attack on workers’ compensation laws in many state legislatures. One benefit that is routinely stripped or attacked is vocational rehabilitation, which allows workers to be retrained if they are unable to do their jobs.

In many workers’ compensation cases, a worker’s injury will give protections to that person under the ADA. This often means state workers’ compensation courts can decide questions of whether an employer could accommodate an injury and/or what duty the employer would have to reassign or retrain an injured worker who would be covered under the ADA. Recently, the 7^th Circuit Court of Appeals held that employers have an affirmative duty to reassign disabled workers. It’s still an open question whether that law would obligate an employer to reassign an injured employee under a vocational rehabilitation program. But seeing that the ADA and workers’ compensation statutes have the same general beneficial purpose of allowing disabled people to maintain employment, such case law could be persuasive.

4. The ADA may affect state disability discrimination laws. States have their own laws prohibiting disability discrimination. States like Nebraska have laws that are more expansive than the ADA when it comes to pregnancy, but provide fewer protections to disabled workers in general. In Marshall v. Eyecare Specialties, the Nebraska Supreme Court held that since Nebraska did not amend its disability discrimination statute like the ADA was amended in 2008, that Nebraska courts should be applying pre-2008 decisions interpreting the ADA to Nebraska’s anti-discrimination laws. State courts generally look to how federal courts interpret discrimination laws when they interpret state fair-employment laws, so federal elections can affect how state laws are interpreted. But state legislatures can enact laws that offer more protections than federal laws. This is the case when it comes to extending fair employment protections to the LGBT community and is increasingly true as more states are starting to view pregnancy like a disability that needs to be accommodated.

Can I Collect Unemployment and Workers’ Compensation Benefits at the Same Time?

Posted on July 18, 2016 by Todd Bennett

In Nebraska, an injured worker who is laid off, fired or leaves a job for good cause can collect unemployment benefits and still receive Temporary Partial Disability (TPD) benefits and Permanent Partial Disability (PPD) benefits from the workers’ compensation insurance company. The Nebraska Labor Department unemployment law does not allow a worker to receive unemployment during the same week the person is paid Temporary Total Disability (TTD) workers’ compensation payments.

To receive unemployment benefits, the injured worker must be ready, willing and able to work. As long as injured worker is ready, willing and able to work within one’s own restrictions, that worker can receive unemployment benefits during the same week that they are entitled to TPD and PPD benefits.

If a person is totally unable to work and getting TTD benefits, that person cannot receive unemployment benefits since they, by definition, are not ready, willing and able to work.

Under the workers’ compensation laws, it is also important to remember that compensation benefits cannot be offset with what is paid under the unemployment benefits. For guidance, please refer to Nebraska Statute 48-130 that supports this rule of law.

If you have been laid off or terminated, you are still entitled to workers’ compensation benefits in the above situations.

If you have any questions, call us for a free consultation.

Nebraska Employers Should Be Required to Post Information about Workers’ Compensation Benefits

Posted on July 14, 2016 by Jon Rehm

The federal government requires that employers post summaries of rights under laws like the Fair Labor Standards Act (FLSA), the Occupational Safety and Health Act (OSH) and anti-discrimination laws like Title VII at their worksites. Most states, including Nebraska, have similar requirements. But Nebraska is among a minority of states that does not require employers to post notices about an employee’s rights under our state’s workers’ compensation act. This lawyer believes that this practice needs to change in Nebraska.

My informal inspection of worksites in Nebraska has shown me that when anything is posted about workers’ compensation, it is usually a poster about treating with an occupational medicine clinic if a person is hurt at work. The problem is that if you are hurt on the job in Nebraska, you can pick your own doctor. If an employee doesn’t exercise the right to pick their own doctor, they are taking the risk of undercutting their workers’ compensation claim.

Illinois has a good poster that explains an injured employee’s rights and responsibilities under their workers’ compensation act. I particularly like the Illinois poster because it tells employees that 1) they have some right to pick their own doctor and 2) they can’t be discriminated against for filing a claim. To me, the Illinois poster reads a lot of what an attorney like me would tell a prospective client who called with a work injury claim.

But not all posters are created equal. I think Kansas provides an example of a poster that doesn’t really help employees. Though the poster is bilingual, it doesn’t really tell employees anything about their rights and responsibilities besides what they need to do to file a report of injury. The poster also encourages workers to call their employer’s workers’ compensation insurer or claims administrator for help. This is problematic, because employees and employers don’t always have the same interests in a workers’ compensation claim.

My view is that readily available, accurate and unbiased information is good for injured employees to protect their rights under any state’s workers’ compensation act. I think posters like the Illinois poster meet these qualifications. Of course, detractors might say that employees can readily find information on the internet, so posters are a relic of the 20th century.

In response, I would say that information off the internet isn’t always reliable. Part of the reason has to do with how search engines work. Marketers and lawyers try to game the system so when an injured worker is looking for a lawyer, those firms always show up in searches. Frankly, that’s part of the reason I write blog posts like the one you are reading now. Even though I try my best to explain the law accurately, I have a slant toward representing employees, so I can’t claim to be unbiased.

But a good poster or summary of rights is about as close to unbiased as you can get. Employers also have some fear of displaying unbiased information about workplace rights in the workplace. Some employers fought a poster from the National Labor Relations Board (NLRB) informing employees about their right to form a union.

Knowledge is power, which is why I believe all Nebraska employees should have complete, unbiased and clear information about their rights under the Nebraska Workers’ Compensation Act readily available in their workplace.

I Can’t Do My Old Job, So I Qualify for Disability, Right?

Posted on July 7, 2016 by Roger Moore

It’s not uncommon for workers to expect to qualify for disability when they are unable to work in a job that they have held for years. The question becomes does that mean they are disabled under Social Security Administration rules? As in most cases in dealing with the law, the answer is maybe!

For workers under the age of 50, applicants must prove that they are also unable to obtain any work in the general economy, even if they can’t do their typical jobs. This includes unskilled work, and the SSA makes no distinction for what type of pay cut a worker must accept to remain gainfully employed. For instance, let’s assume a worker was earning $20 an hour as an electrician, but could no longer handle the rigors of that employment. If that person can do a minimum-wage job full time or at the level of substantial gainful employment as set by the SSA, then a person is not considered disabled under the SSA rules. Many people are surprised that the SSA would require this. Even if jobs don’t exist within the current labor market, the SSA would require a worker to move herself to a larger market to continue to be employed.

For individuals over the age of 50, the primary question is did they acquire skills from prior employment that would enable them to transition into other employment areas. If those skills would allow the worker to transition to alternate employment, then they are not considered disabled. If those skills are too specialized and don’t easily transition to alternate employment, the worker may very may well be disabled, according to SSA rules.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Category Archives: employment law

First Responders, Retaliation and Labor Law

Are Graduate Students and Teaching Assistants Employees in Nebraska?

Should You be Paid for Your Unpaid Internship?

What Does this Improper Medical Treatment Sanction from OSHA Mean?

Disability Rights Take Center Stage at Democratic Convention

Can I Collect Unemployment and Workers’ Compensation Benefits at the Same Time?

Nebraska Employers Should Be Required to Post Information about Workers’ Compensation Benefits

I Can’t Do My Old Job, So I Qualify for Disability, Right?

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