Category Archives: Employment

Watch your body clock and time clock for a safe and fair “fall back”

Posted on November 11, 2019 by Jon Rehm

Early last week most of us felt a little dazed and tired from the end of daylight savings time. But will that time change lead to more injuries and some workers getting shorted on their paychecks?

The end of daylight savings time and workplace safety

Studies show that daylight savings time in the spring leads to an increase in work injuries. While no studies have been done on the end of daylight savings time, experts state that any changes to the bodies ciciadian rhythms can lead to lower concentration, which can increase the risk of work injury. In short, if you feel a little off in the days after daylight savings time, your chances of injury on the job increase.

Fatigue leads to injuries. The risk of fatigue-related injury at work tends to increase in November and December as many workers take on increased hours or second jobs during the holiday season.

The time shift and wage theft

A tweet from a high-profile New York congresswoman reminded workers who work overnight to check their paystubs as sometime computerized timekeeping records will miss time shifts. Workers in human services, transportation and retailing would be particularly vulnerable to this form of wage theft.

Proving up actual unpaid time is one of the biggest challenges for employees when it comes to wage and hour law. The United States Department of Labor has an app callled Timesheet which allows workers to monitor their own hours. The law favors employees who bring wage and hour violations to the attention of their employers in a prompt manner.

The federal Fair Labor Standards Act (FLSA) also includes anti-retaliation provisions which protect an employee who brings up a potential wage and hour violation to their employer.

While one hour of unpiad wages would be a small amount of money, an employer would not be able to plead a de minimis defense. That defense only applies in pre and post shift activities. Workers can join together in collective action cases under the FLSA. This allows workers to join together for relatively small amounts of wage loss. But workers are forced to opt-in or affirmatively join those cases. The opt-in provision works to limit the actual damages payable in these cases. I am involved in a collective case now where about 1/10 of the eligible workers decided to opt-in.

Up until 2018, I think it would be fair to say that workers who banded to together to address unpaid wages would also be covered under the National Labor Relations Act. (NLRA) In the wake of the Epic decision, I have some doubts about whether that activity would be protected. The Epic decision also gave employers the ability to take away the right of employees to join together to sue the employer for wage violations.

Proposed Changes To Iowa Workers Compensation Cruelly Target Elderly Employees

Posted on March 6, 2017 by Jon Rehm

Anti-worker changes could be coming to Iowa workers compensation. To me the cruelest reform would be the proposal to end permanent total disability benefits at age 67 and limit workers who are over 67 who become permanently and totally disabled to 150 weeks of benefits. One memorable client of mine demonstrates the callousness of the proposed Iowa reforms.

My client Doris Newkirk was 83 years old when she was injured working as a hostess at Lone Star Steakhouse in west Omaha in June 2006. She was near a bathroom door when a large male co-worker came barreling into the bathroom and caused Doris to fall back and injure multiple parts of her body. Like many retirees, Doris worked because she needed the money. After her injury she was unable to work. Fortunately Doris was able to receive permanent total disability benefits to make up for the income she lost because she wasn’t able to work. Those permanent benefits started in September 2007 and continued for five years and 10 ½ months until her death on July 21, 2013.

If Nebraska law limited those injured over the age of 67 to 150 weeks of permanent total disability benefits, Doris wouldn’t have been paid anything for the last three years of her life. To her credit, Doris travelled from Omaha to Lincoln in her late 80s to testify against similar legislation when it was proposed in Nebraska. According the Business and Labor committee clerk at the time, the state Senator who introduced the bill at the behest of insurance interests made a motion to kill the bill after listening to her testimony.

Workers compensation is a cost of business. But according to CNBC, Iowa has the second lowest cost of doing business in the country. Iowa, like Nebraska, generally ranks well in national surveys of business climate. Iowa’s weakest area when it comes to business climate, according to CNBC, is quality of workforce. Unlike Nebraska, Iowa lacks vocational rehabilitation for injured workers. If Iowa is looking to reform its workers compensation system, they should consider investing in vocational rehabilitation so injured workers can fully regain their ability to contribute to the economy in Iowa.

Repeal of ACA Would Undercut Doctor Choice in Workers’ Compensation Claims

Posted on January 19, 2017 by Jon Rehm

The repeal of the Affordable Care Act (President Barack Obama’s health care law) is a real possibility in the Trump administration. It will be difficult to know how a repeal would affect workers’ compensation without having an idea about what alternative plan, if any, would replace the Affordable Care Act. But it seems certain that if Americans lose health insurance, they will have less control over their own medical care if they are hurt at work.

In 2011, Vermont passed a single-payer health care plan. In a blog post I wrote for Jon Gelman’s blog, I observed that if all employees had their own doctors, it would be next to impossible for employers to route injured workers to occupational-medicine clinics. A blogger for Lynch Ryan made a similar observation. Doctor choice is critical, because some employers go so far as to unlawfully conspire with claims adjusters and doctors to undermine the value of an employee’s workers’ compensation claim. A single-payer system decouples health insurance from employment, which makes employers less influential in the system

The ACA is not a single-payer system, but millions of Americans gained health insurance through public Medicaid programs in states that chose to expand Medicaid after the Supreme Court struck down the mandated Medicaid expansion in 2012. This coverage was decoupled from employment. Insurance obtained through an exchange is also not tied to individual employers either. People who lacked health insurance tended to not have doctors, which meant that they had no choice but to see whomever their employer wanted them to for a work injury.

The workers most vulnerable to injury are often the workers least likely to have health insurance. Younger people are more likely not to have health insurance. As Milwaukee lawyer Charlie Domer pointed out in a blog post last fall, younger workers are more likely to get hurt on the job. New employees are often unable to enroll in company health insurance plans right away. Last fall, I wrote a post about how employees within the first few months of their employment are more likely to get hurt on the job.

A silver lining to the gray cloud of a prospective ACA repeal is that even if an employee loses health insurance, Nebraska workers’ compensation court Rules 49 and 50 still allow an injured worker to choose a doctor who treated them before – presumably when that worker had health insurance. Unfortunately, Nebraska did not expand Medicaid, so there would be a smaller proportion of Nebraskans of who gained health insurance under the ACA than in states, like Iowa, where Medicaid was expanded.

Pregnant Workers Should Get Workers’ Compensation If They Have a Claim

Posted on January 4, 2016 by Todd Bennett and Jon Rehm

A new law went into effect during 2015 in Nebraska that requires employers of 15 or more employees to accommodate pregnant workers on the job. This is a significant change that affects working women by expanding workplace protections for those who become pregnant.

Nebraska’s protections for pregnant employees go beyond even the standards for pregnancy discrimination under federal law. The new law also protects women with post-childbirth medical conditions and women who choose to breastfeed or pump.

This law means that pregnant women in Nebraska will be able stay on the job longer and will have an easier time returning to work.

This accommodation includes obtaining “equipment for sitting, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light-duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for breastfeeding or expressing breastmilk.” Nebraska Revised Statute 48-1102 (11)

These changes outlaw discrimination against a pregnant woman with respect to hiring, advancement, discharge, training and other terms, conditions and privileges of employment. These protections extend to a pregnant employee before, during and after a pregnancy.

Unfortunately, pregnancy doesn’t mean that women can avoid work injuries, especially in female-dominated fields like nursing and human-services support. Sometimes employers and/or insurers will attempt to use the excuse that since an employee is going to be out because of pregnancy that they do not have to pay temporary disability benefits to an injured worker who is suffering from a work injury.

But when an occupational or work injury and a non-occupational injury, combine to cause disability, employers still have to pay those disability benefits. Nebraska’s new law on pregnancy doesn’t change that fact. If anything, smart and ethical employers will attempt to accommodate injured pregnant employees in legitimate light-duty jobs so they do not have to pay disability benefits.

In addition, when a pregnant employee is injured on the job and is receiving workers’ compensation benefits and later is ordered by her physician not to perform certain work activities or is in need of bed rest due to the pregnancy, an injured and pregnant employee’s workers’ compensation benefits cannot be reduced or suspended on account of the pregnancy in both Nebraska and Iowa.

However, not all employers and workers’ compensation insurance carriers understand or follow the law. If you are injured and not receiving workers’ compensation benefits because your employer says that they could accommodate your job but for you being pregnant, you need to call a firm that handles both discrimination and workers’ compensation law. You should also call an employment lawyer if you are pregnant and being forced to take unpaid leave rather than having your job duties modified or changed.

Companies Must Understand: Labor is About More Than Just Jobs

Posted on November 30, 2015 by Rod Rehm

Today’s post was shared by U.S. Labor Department and comes from blog.dol.gov

National Apprenticeship Week was earlier this month. Do you know someone who has been an apprentice or who has a technical job and taken a different path than a four-year degree to get there? What do you do to stay on top of the technology changes in your industry? Does your industry rely on technology, and how has your job changed over the time you have been working due to technology?

People should expect to have a number of jobs throughout their work life and even may have numerous careers. Learning the skills to be flexible and continue to learn is essential, and this is one reason that apprenticeships are so appealing. But they definitely must be paid. In addition, most apprenticeships hopefully will lead to full-time jobs with full-time benefits.

I just hope that in programs like the one Nestle highlights in the blog post that worker and workplace safety in the company culture is right up there with skill building as far as priorities taught to apprentices.

Every day, Americans are encountering new technologies that would have been unthinkable a generation ago. From smartphones to the notion of recreational space travel, it can sometimes feel like we’re running on a technology treadmill.

The challenge, of course, is keeping up.

In the world of manufacturing, incredible advances fueled by technological innovations have remade industry in large and small ways, leaving a “middle-skills gap” — in essence, technology has outpaced our workforce. Yet this gap is also an opening for companies to help 21st-century workers keep pace with the treadmill. This issue will certainly be front and center during this presidential campaign cycle, and National Apprenticeship Week — starting Nov. 2 — provides a sound moment for businesses to ask: Are we helping our employees keep pace — for us and for them?

At Nestlé, the technology and skills needed vary from plant to plant, from product to product. The processes and production lines are altogether different, depending on whether we’re making baby food or ice cream, pet food or coffee. The more diverse a business’s portfolio, the more diverse its workforce needs to be.

That’s why Nestlé and companies like ours are creating new paths of opportunities for workers around the globe. In the United States, that means ramping up the number of apprenticeships, creating rich internships and conducting instructive traditional and…[Click here to see the rest of this post]

Thanksgiving Thoughts: Appreciating Workers and Stores Closed on Holiday

Posted on November 23, 2015 by Emily Wray Stander

What are your plans later in the week? Will you gather with family, friends, and loved ones? And do you plan to go shopping? Or do you have to work and just hope, like many truck drivers, that you’ll get a warm meal that may or may not involve turkey on Thursday?

I want to thank everyone who doesn’t have a choice in the matter and who will be working on Thursday, including first responders, health care workers, truckers and retail workers. I also want to provide a few links to online articles I found that list stores that have chosen to be closed on Thanksgiving so these employees can be with their loved ones, whether friends or family. Each list is slightly different, and I realize that there are different stores in Iowa and Nebraska, too, so that’s why there are three links.

In addition, if you plan to do some shopping on Black Friday, please take note of this OSHA FactSheet resource regarding crowd management safety guidelines from the U.S. Labor Department’s Twitter feed.

Also note that the offices of Rehm, Bennett & Moore and Trucker Lawyers will close at 3:30 p.m. on Wednesday, Nov. 25. The offices will be closed on Thursday, Nov. 26, and Friday, Nov. 27, for the Thanksgiving holiday. We will be open again at 8:30 a.m. on Monday, Nov. 30.

We are thankful for so much. At this time of reflection, we are especially thankful for family, friends, and the opportunity to advocate for clients who make our work worthwhile. Happy Thanksgiving!

Five Ways Employees Can Navigate the Hassle of Temporary Partial Disability

Posted on November 19, 2015 by Jon Rehm

Return-to-work issues seem to involve the blind leading the blind, even in the best circumstances. Doctors, especially general practitioners, are unsure what exact work restrictions are needed for an injured employee. Employers may not always have a good idea, assuming they are acting in good faith, what the requirements for the job are as well.

This can be further complicated if an employee attempts to come back to work part time from temporary disability. Not only do you have to navigate the issues of whether the job is appropriate, but you also have to deal with how much you get paid for what is called temporary partial disability.

What is temporary partial disability?

Temporary partial disability represents two-thirds of the difference between what you are making and your pre-injury average weekly wage. Though this seems simple in theory, it can be complicated for many reasons. Here are five things that employees can do to ensure they are being paid the proper amount of temporary partial disability:

Keep track of your pay stubs: Temporary partial disability is difference between your pay and your average weekly wage. So you need to know your pay in order to determine that amount. Sure employers can do this, but sometimes employers, especially if they are self-insured, have incentive to drag their feet. Also, many companies will outsource their payroll so that information may not be readily available to them. The best solution is to have that information on hand yourself. Having your pay stub will also allow you to know your pay period, which is also important.
Keep track of your hours on daily basis and/or get a copy of time card: Temporary disability is usually paid weekly. Many employers will pay every other week. The pay periods between your paycheck and your disability check might also vary. Sometimes checks will get delayed because an insurance company legitimately has to investigate what benefits have to be paid for one week. You can simplify this for them by providing your time card. The U.S. Department of Labor has a good app for this that you might want to use that tracks hours worked.
If your job is too hard to do physically, make a doctor’s appointment right away to see if you can get your restrictions changed: Delaying a visit to the doctor may not only damage your health; it can also cost you money. An employer can attempt to deny and delay payment between the time where you stopped working at a “light duty” job and when a doctor took you off work and you start receiving temporary total disability again. You may not be able to recover this money, short of going to court, but you do have some control over keeping these gap periods as short as possible.
Turn in your time cards and time sheets to your workers’ compensation attorney or insurer: Don’t assume that your employer is turning over your hours to their workers’ compensation insurer. Be sure that you (or your lawyer) are turning in that information to ensure prompt and full payment.
Make sure that you know your average weekly wage: Workers’ compensation benefits are generally some percentage of your average pay over a time period. Employers will often turn over this information to their workers’ compensation insurer for them to determine how much you should be paid. If you think you are getting shorted, ask the insurer for the basis of their calculations and run it by an experienced workers’ compensation lawyer in your state or the state where your claim has been filed.

Insensitive? Yes. Crabby? Yes. Illegal Discrimination? Probably Not.

Posted on November 5, 2015 by Jon Rehm

Advertisement from the McCook, Nebraska, newspaper via Michael Schwanke’s Facebook page

KWCH (Wichita, Kansas) television reporter Michael Schwanke posted a help-wanted ad from a McCook, Nebraska, auto-glass shop on his Facebook page that has gone viral on social media and brings up some basic truths about employment law. Here is the meme:

The overarching theme here is that regular and reliable attendance and a good attitude are essential job functions for this particular job, as they are for most jobs. Do some of these requirements seem unlawful? Maybe on their face, but they probably aren’t when you do the analysis. Here are few that might raise red flags and why they probably aren’t illegal.

“Have no baby sitter every day” Yes, it is illegal to discriminate on the basis of being a parent. However, most jobs require reliable and regular attendance. Sure, problems with child care can be reasonably expected, but if it becomes a pattern and it disrupts work, then it is a legitimate reason for termination.

“Have court often” There is a move to limit the use of criminal background checks in order to help ex-felons get hired, so maybe this looks bad. But again, “have court often” means that you are currently involved with the court system. If current legal issues keep you away from work too often, that could be a reason for termination. I believe that criminal background checks in employment often disproportionately affect minorities. However, barring any expression of animus against a particular race or nationality, the desire to not have your employees miss work often because of court appearances is a legitimate concern of a business owner.

“Oversleep” Sometimes medical conditions and the side effects of medications can make it difficult to wake up. Assuming your employer is covered by disability-discrimination laws, a situation like that would be covered. But again, if your job actually requires you to be present and working at a certain time and you can’t reliably meet that requirement, then your employer has a reason to fire you.

A review of the comments on the Facebook posting showed that most of the commenters were sympathetic with the employer. Regardless of what I think about those comments as an employee advocate, people with those types of attitudes and feelings are going to be the ultimate deciders of whether an employer wrongfully terminated or otherwise violated the rights of a client of mine. So if you are terminated for a reason you think was wrong or otherwise mistreated by an employer, make sure that you did your best to fulfill your duties as an employee – especially in regards to attendance.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Category Archives: Employment

Watch your body clock and time clock for a safe and fair “fall back”

Proposed Changes To Iowa Workers Compensation Cruelly Target Elderly Employees

Repeal of ACA Would Undercut Doctor Choice in Workers’ Compensation Claims

Pregnant Workers Should Get Workers’ Compensation If They Have a Claim

Companies Must Understand: Labor is About More Than Just Jobs

Thanksgiving Thoughts: Appreciating Workers and Stores Closed on Holiday

Insensitive? Yes. Crabby? Yes. Illegal Discrimination? Probably Not.

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