Category Archives: Legislation

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.

9-11: 15 Years Remembered

Posted on September 8, 2016 by Todd Bennett

What have we learned, and what is the progress we have made toward helping those who help others?

As we remember and celebrate that fateful day, we should continue to celebrate and protect those who risk their lives to help others but who continue to live with the mental and emotional effects when faced with such tragic events encountered in responding to the call to serve.

In Nebraska, we have recognized that with tragic events come the effects to some who just can’t mentally and emotionally get past those events. We have garnered some protections for those first responders whose job it is to serve when emergency matters require it.

First responders have a specific definition as set forth in Nebraska Revised Statute 48-101.01, but essentially if a person serves as an officer, fireman or medical emergency personnel who is called to an emergency response situation, then that person has some workers’ compensation protections.

Personal injury now “includes mental injuries and mental illness unaccompanied by physical injury for an employee who is a first responder” if that person suffers from PTSD, depression, anxiety, mood disorder, panic attacks, reactionary diversion, neurotic disorder, etc.

One must establish “that the employee’s employment conditions causing the mental injury or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment” in which they serve. What is usual is constantly being debated and disputed, but an event causing significant bodily injury or death is not usual in the eyes of the courts.

What is not covered or considered compensable are “mental injuries and mental illness arising out of and in the course of employment unaccompanied by physical injury … if they result from any event or series of events which are incidental to normal employer and employee relations, including, but not limited to, personnel actions by the employer such as disciplinary actions, work evaluations, transfers, promotions, demotions, salary reviews, terminations” or going through the legal process in unrelated matters.

Sometimes employers will retaliate against employees who claim work injuries. Though demotions, write-ups and post-injury terminations aren’t compensable through workers’ compensation, there could be a retaliation or disability discrimination claim. First responders who believe they might be being retaliated against should also reach out to the NAPE/AFSCME, IAFF or FOP representative immediately to help preserve their employment.

We have come a long way in the 15 years since 9-11 in providing protections and workers’ compensation coverage to first responders who make it their job to serve and protect. But what about those who were working and saw and experienced this tragedy who are not first responders? They continue to not be covered for their mental and emotional effects. On this anniversary date, as we remember those who served, we need to continue to fight for everyone who encounters tragic events in the course and scope of their employment and suffers mental illness or conditions, but do not suffer a physical injury. They need the protections workers’ compensation coverage can provide, just like first responders.

Nebraska Convenience Store Clerks Need More Protection from Violence

Posted on July 10, 2016 by Jon Rehm

Lincoln residents awoke to find out that a convenience store clerk was killed early on Thursday morning at a store in northwest Lincoln. Unfortunately, this type of violence is not uncommon in Lincoln, Omaha, rural Nebraska or anywhere else in the United States.

While the federal government has long recognized the problem of violence against convenience store clerks working overnight shifts, it has been left to the states and even cities like Milwaukee and Irving, Texas, to write laws and regulations to protect convenience store clerks from violence.

The Indiana Department of Labor did a comprehensive study of measures taken by other states and cities on how they protect convenience store clerks from violence. Common practices included bulletproof glass and cages to protect clerks in high-risk areas, security cameras, clear views of cash registers, and having at least two clerks on dangerous overnight shifts. Barriers around cash registers in particular would be crucial in high-risk stores that are robbed regularly because robbers will often jump behind unprotected counters.

Though the city of Omaha has done some proactive policing to protect convenience stores in the recent past, neither Omaha, Lincoln nor the state of Nebraska has any legislation, regulations or ordinances in place to protect convenience store clerks from violence. I would encourage Nebraska’s state senators and city council members in Omaha, Lincoln and other Nebraska cities to put laws in place to protect convenience store workers. If you do not know who your state senator is, you can look that up here. Omaha residents can click here to find out how to contact their city council member, and Lincoln residents can click here to find out how to contact their city council member. Nebraska has legislative elections this fall, and Lincoln and Omaha have city elections next spring. I would urge voters in these races to pay attention to which candidates have a good record and ideas about workplace safety and which candidates value profits over safety.

Workplace Death Benefit in Bill Should Be Expanded

Posted on February 11, 2016 by Rod Rehm

Omaha Sen. Health Mellow

I was recently quoted in the Omaha World-Herald newspaper as a neutral testifier in the Nebraska Legislature regarding a bill being considered, LB 836.

As commentator Paul Harvey used to say, now here’s “the rest of the story.”

LB 836 is a bill sponsored by Omaha Sen. Health Mellow that “would provide a one-time $50,000 death benefit to the family of a law enforcement officer, firefighter or correctional officer killed during a violent or accidental incident while working,” according to the World-Herald article.

This bill should be passed to help first responders and I am glad that it would also cover volunteers in Nebraska, according to the World-Herald.

I have to ask: Why stop there? For many families, the on-the-job death of a loved one means so much tragedy, and LB 836 or another bill should be is introduced, passed, and be made into law to give a similar benefit to anyone who is killed on the job in the state of Nebraska. It’s an issue of inclusion. No one should be excluded from their loved ones having a bit more financial stability if the unthinkable happens on the job.

Sen. Mellow was quoted in the World-Herald saying that eight first responders in 16 years have been killed in the line of duty in Nebraska.

It is tragic and frustrating to hear about anyone killed at work, and one person dying is one too many. In this spirit, of the 4,679 fatal work injuries in 2014, 54 of them were in Nebraska, according to the U.S. Bureau of Labor Statistics Fatal Work Injuries in Nebraska – 2014 website.

The range of workplace fatalities varied from a high of 83 in 1994 to a low of 36 in 2005. In 2013, there were 39 deaths, and 48 people died at work in 2012, according to the U.S. Bureau of Labor Statistics websites.

It appears that over the last 10 years, according to a table in the 2014 BLS document, approximately 492 workers’ loved ones would have appreciated worrying less about finances when their loved one died as a result of the workplace.

I feel strongly that grieving survivors should receive a significant death benefit for every Nebraska worker who is killed on the job. Right now, the beneficiaries of employees who are killed at work get $10,000, which these days is not even enough for a funeral and burial. Usually this is the tip of the iceberg regarding unexpected costs that loved ones endure, in addition to a brutal and unanticipated grieving process, too.

The average number of deaths a year that I gave at the hearing was on the low end: 36, based on the number that occurred in 2005.

But know that each of those people who died in a workplace incident had someone who loved her or him and who relied on that person and misses them immensely. Kudos to Sen. Dave Bloomfield of Hoskins, who recognized that the grieving process is universal, according to the article in the Lincoln Journal Star. I stand by the quote that was in the Journal Star, and want to emphasize that first responders are important contributors to society, as are other workers who are killed each year on the job, including those who make such occupational choices as steel workers, road workers, and packing plant workers.

“I’ve had those guys fall off roofs and die and get crushed. They’re doing a hell of a community service. So are road workers. So are the packing plant workers who get chewed up and spit out like the hamburger they’re making.”

All of them are contributing to society. So I hope we can honor them and their survivors through increased death benefits legislation to show those contributions.

States with Opt-Out Workers’ Comp System are Strict on Injured Workers

Posted on November 9, 2015 by Jon Rehm

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

Today’s post was written by guest author Hayes Jernigan, from The Jernigan Law Firm in North Carolina. In 2015, ProPublica and NPR have done a great service to the public by making in-depth reports on workers’ compensation systems in many states. Their most recent focus was looking at the opt out systems implemented Texas and Oklahoma. These similar systems essentially strip workers of the protections that workers’ compensation gives, stacking the deck dramatically toward employers and their insurance companies.

Fortunately, Nebraska is not an opt out state yet. But many Nebraska employers, especially those who are self-insured for the purposes of workers’ compensation, have adopted many tactics from opt out states. I think the most prevalent tactic is hoodwinking employees into filing for short- or long-term disability when an injury should be covered by workers’ compensation. Employees often unknowingly agree to this in situations where the work duties aggravated an old injury or pre-existing condition or if there is some minor delay or defect in reporting the injury. If you sign up for private disability insurance, you are often asked to deny that your disability is work related. That can doom any possible workers’ compensation claim in the future. If you are being asked to sign up for long-term or short-term disability for a medical condition that may have been caused by work injury, contact a workers’ compensation attorney.

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

This morning we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.

To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.

A Seat at the Table: Lifting the voices of Americans at work

Posted on October 22, 2015 by Rod Rehm

Rob Hathorn shares his story alongside Joe Schmidt, an employee at Market Basket, in the East Room during the White House Summit on Worker Voice on October 7.

Today’s post was shared by the U.S. Labor Department and comes from medium.com.

What kind of investment do you, as a worker, have in the company for which you work? And what kind of an investment does the company have in you?

This article talks about all kinds of useful values when it comes to workplace culture and was based on the White House Summit on Worker Voice.

What values are shared and appreciated in your workplace? And are all included in the discussion? Be sure to read the entire article so you can see the six principles that President Obama laid out to help achieve the goal of shared prosperity for all workers.

All are important for a well-rounded discussion, but I was especially interested in number 3: “If you work hard in America, you should have the right to a safe workplace.”

We see the consequences, on a daily basis, of that particular principle falling short. But businesses can and should do better. I hope they will.

Have a safe and productive day.

Last week, autoworker Rob Hathorn sat in the East Room of the The White House and told his story:

He and his wife and their six year old daughter live in Mississippi, where he works at the Nissan plant in Canton. Rob is a production technician on the frame line, but when he started at the plant, he wasn’t a Nissan employee. Instead, he worked for a contractor, earning less and receiving fewer benefits than the people working right next to him. After two years, he was able to transition to being a Nissan employee, but only as a so-called “PermaTemp,” a permanent, temporary employee and an oxymoron if I’ve ever heard one. That means he earns $14 an hour, and the highest he can ever earn is $18.35. Full-time Nissan employees working alongside him doing the same job earn $24 an hour. He would have to work 70 hours to earn the same amount that some of his coworkers earn in 40. He has to train workers who earn more than him to do the same job.

Sitting next to Rob in the East Room was Joe Schmidt, the operations supervisor for Market Basket — a New England regional grocery chain that made national headlines last year when employees up and down the chain of command — from baggers and warehouse stockers to long-tenured managers — walked off the job to protest the firing of their beloved CEO. I asked Joe what would happen if there were two people working side-by-side at Market Basket, performing the same tasks, but one earned just a fraction…

[Click here to see the rest of this post]

ProPublica: Big Problems with Workers’ Compensation Opt Out

Posted on October 15, 2015 by Rod Rehm

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

ProPublica has published a new and shocking exposé on the continued corporate efforts to do away with workers’ compensation. Big Busness wants to decide how much they can pay without legally required benefit levels. They want laws that allow the fox to guard the henhouse to borrow an old country saying. Texas has already allowed this situation. Working families and their supporters need to gird their loins for battle after battle to preserve and improve the workers’ compensation system while Big Business continues to spend time and money to take benefits away.

Hurt at Work? Here’s Your Eviction/Foreclosure Notice

Posted on September 28, 2015 by Roger Moore

For too many of our clients, an injury at work means certain financial distress. Even for clients whose benefits are paid in a timely manner, there are certain built-in time frames when they will receive no benefits or benefits at a much lower rate than a full paycheck (sometimes as little as 5 or 10 percent of a typical paycheck).

In Nebraska, temporary benefits are paid only until maximum medical improvement is reached. We try to have a report waiting for the doctor when it appears as if he may conclude an injured worker is at that point. However, due to the workload of the doctors and sometimes the need for a Functional Capacity Evaluation, a worker can go months without any benefits coming in before the receipt of the report. There is no interim benefit payable to get a worker and his or her family by until permanent benefits are paid.

This situation is made worse when a claim is denied. In that situation, a worker may find herself unable to work for several reasons. First, an employer may not think it’s their responsibility to accommodate work restrictions for a non-work-related injury. This may also ultimately result in a worker being fired for missing too much work. Second, a doctor may not allow the worker to work due to the severity of the injury. Typically an employer will refuse to pay temporary benefits since the claim was denied.

Most families in this country live paycheck to paycheck or with only a month or two of built-up savings.

“Forty-four percent of Americans are either in debt, have no savings at all, or have only enough savings to tide them over for up to three months if they lose their jobs, according to an Assets and Opportunity report last year,” according to this article on the Fiscal Times website.

Too often in this country, families of injured workers are being evicted or losing their homes due to gaps in the compensation system for work injuries. “In reality, the costs of workplace injury and illness are borne primarily by injured workers, their families, and taxpayer-supported safety-net programs. … Workers’ compensation payments cover only a small fraction (about 21 percent) of lost wages and medical costs of work injuries and illnesses; workers, their families and their private health insurance pay for nearly 63 percent of these costs, with taxpayers shouldering the remaining 16 percent,” according to a recent OSHA report titled Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job.

Legislatures should endeavor to create a payment system to alleviate the built-in financial woes for even compensable injuries.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Category Archives: Legislation

Is the Rule of Law Under Attack?

9-11: 15 Years Remembered

Nebraska Convenience Store Clerks Need More Protection from Violence

Workplace Death Benefit in Bill Should Be Expanded

States with Opt-Out Workers’ Comp System are Strict on Injured Workers

A Seat at the Table: Lifting the voices of Americans at work

ProPublica: Big Problems with Workers’ Compensation Opt Out

Hurt at Work? Here’s Your Eviction/Foreclosure Notice

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