Category Archives: Unfair employment practices

This Is How Americans Spent Their Money in the 1950s

Posted on February 1, 2016 by Emily Wray Stander

Today’s post is an article that was shared by Tomasz Stasiuk, a Colorado lawyer, and comes from www.wisebread.com

Every once in a while, this blog gives a person a chance to take a step back and think about both personal priorities and philosophies and what is happening in the larger society and how those trends affect workers and their loved ones in the big picture. This blog post is one of those moments.

Were we, as persons, or we as a society better off “way back when”? As can be seen in the article below, I think it depends on whose “way back when” we’re focusing on.

There were definitely some positives from the article for many: buying power comes to mind. But it is possible that the negatives for others, such as society-sanctioned racial discrimination and limiting women to certain roles, outweigh the perceived positives. In fact, entire books, such as “The Way We Never Were: American Families and the Nostalgia Trap” are devoted to these issues.

I wish the article below explored worker safety in the decade of the 1950s, too, as I hope, being an idealist, that it has improved overall, both for society and individuals, since then. However, I was very glad to see salary information, as that definitely affects workers and their families or loved ones.

Though at first glance an “average yearly income” of “$3,210 in 1950” and $5,010 in 1959” seems small for a household, it was a different era regarding buying power.

I really do appreciate that prices from the 1950s are translated to today’s dollars, so you can see how both buying power was different and the evolution of consumer culture happened. This includes focusing on housing, autos, televisions, spare time, and discretionary spending.

The biggest takeaway I got from this article was both how much things have changed and also how they sometimes stay the same (and how for some, remembering the good is the only part of an experience they recall).

Society and individuals have a ways to go in eliminating discrimination, focusing on women workers, and improving worker safety. But it is fascinating that a consumer today would mostly understand “how Americans spent their money in the post-war 1950s.”

“That’s because the spending habits we consider normal were born in the post-war 1950s. Prior to that decade, few households could boast discretionary spending, and before television, there were not as many large-scale outlets that allowed advertisers to tempt consumers into unnecessary spending.

“We may no longer consider a 983 square foot house or a car with a rusted-through hole in the floor to be normal, but our expectations for spending discretionary income remain mostly the same.”

So is your household or family unit better off than you would have been “way back when”? And what will productivity, progress and success look like for a worker and family unit or loved ones in 50 years?

Only time will tell.

Americans tend to think of the 1950s as an idyllic time when the babies were booming, the jobs were plentiful, and the country was flourishing.

Our parents and grandparents had good reason to feel prosperous. The average yearly income rose from $3,210 in 1950 to $5,010 in 1959, and post-war Americans were enjoying access to products and services that were scarce during World War II. Finding good uses for disposable income in the 1950s began the American love affair with consumerism. That love affair that continues to this day — although our spending priorities may have changed somewhat over the years.

Here’s how Americans spent their money in the post-war 1950s, and how their spending habits compare to ours in the 2010s.

White Picket Fences

The American dream of owning a home has deep roots the 1950s. Not only were many of the 16 million returning WWII veterans looking to buy homes, but the GI Bill offered them liberal home loans, and the end of the war saw the beginning of the baby boom, all of which drove demand for affordable houses.

Large homebuilders met that demand. They began applying assembly-line methodology to home building — by using panelized construction and drywall rather than wet plaster — which allowed them to create “cookie cutter” tract housing, giving birth to the modern suburb. An amazing “three out of five families became homeowners, and suburban living became a national phenomenon.”

There was a dark side to this housing…

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Overturning DOMA Will Increase LGBT Rights in the Workplace

Posted on July 1, 2013 by Jon Rehm

The impact of the U.S. Supreme Court decision overturning the Defense of Marriage Act will be felt in the workplace.

First of all, overturning DOMA will expand anti-discrimination protections and partner benefits to lesbian, gay, bisexual and transgender employees who are employed by the federal government.

Overturning DOMA will also probably benefit LGBT employees not working for the federal government. One argument is that banning LGBT discrimination in federal employment will ease acceptance of extending anti-discrimination protections to lesbian, gay, bisexual and transgender workers in the workforce as a whole. Legislation has been introduced that would explicitly extend protections of federal and state fair-employment statutes to LGBT workers.

From a political point of view, explicitly extending fair-employment statutes to cover LGBT workers probably won’t be feasible until at least 2015, depending on the outcome of the 2014 elections. Politicians in “red states” in both parties may be wary of conservative backlash if they support extending fair-employment practices. That same reticence will probably be displayed by Senate Majority Leader Harry Reid who needs to Democrats to win in several conservative states in order to hold on to the majority.

But the recent decision overturning DOMA may further open the door to judicially expanding employment statutes to lesbian, gay, bisexual and transgender employees. Justice Anthony Kennedy and the liberal bloc struck down DOMA on Fifth/14th Amendment equal-protection grounds. If states can’t discriminate against gays in marriage on equal-protection grounds, it doesn’t make logical sense that the Fifth/14th Amendment allows employment discrimination against LGBT workers.

It is arguable that LGBT people already have the protections of our fair-employment laws under the theory of sex-plus discrimination that prohibits discrimination based on sexual stereotypes. In Smith v. City of Salem, Ohio, the Sixth Circuit Court of Appeals extended protections under the sex-plus theory to a male firefighter who started identifying as a woman. In Lewis v. Heartland Inns of America, the conservative Eighth Circuit Court of Appeals upheld a finding of possible finding of sex discrimination for a woman who was described by her boss as having “an Ellen DeGeneres kind of look.” Though the Eighth Circuit didn’t make any reference to sexual orientation in the decision, it is obvious that “Ellen DeGeneres” is a code word for “lesbian.” It makes sense to me that opposite-sex attraction is a stereotype for each gender and that discrimination against LGBT people should be covered under the theory of sex-plus discrimination. I think courts will be increasingly be forced to rule that way in the wake of the decision on DOMA stating that discrimination against gays and lesbians runs afoul of the Fifth/14th Amendments. Another possible factor working in favor of expanding fair-employment protections to LGBT workers are recent Supreme Court decisions interpreting federal fair-employment law favorably for employers. It’s easy to conceive of a moderately conservative judge in the mode of Justice Kennedy judicially extending fair-employment law to gays and lesbians with the understanding that it will likely be more difficult employees to win fair-employment suits.

Until Congress and/or our state legislatures act, LGBT employees are not guaranteed equal rights at work. But thanks to the decision overturning DOMA, I think courts will be more open to extending workplace rights to the LGBT community, regardless of what is done in the legislative branch.

Why Overturning DOMA Is a Win for Employee Rights

Posted on June 27, 2013 by Jon Rehm

Regardless of your opinion on the issue of gay rights, Wednesday’s U.S. Supreme Court decision overturning the Defense of Marriage Act is a win for workplace fairness.

The constitutional authorization for most federal fair-employment laws is based on the guarantees of equal protection of the law based on the Fifth and 14th Amendments to the U.S. Constitution and the right of Congress to regulate interstate commerce clause. In his opinion overturning DOMA, Justice Anthony Kennedy found that DOMA violated the Fifth and 14th Amendment rights of gays and lesbians. He reaffirmed the role of the Fifth and 14th Amendments in preventing discrimination.

Kennedy’s opinion is important because in last summer’s blockbuster Supreme Court decision upholding the Affordable Care Act, Chief Justice John Roberts undercut the interstate commerce clause as a justification for passing federal legislation. Conceivably, corporate opponents of workplace fairness laws could point to Roberts’ decision in the Affordable Care Act as a way to argue that federal workplace fairness laws are unconstitutional. However Wednesday’s decision in the DOMA case means that workplace fairness laws still have clear and strong constitutional support.

The DOMA decision is a bright spot in a Supreme Court session that has otherwise been pretty bleak for employees. My opinion is that as a result of recent Supreme Court decisions, more and more fair-employment cases will be brought in state court. The decision in DOMA is still relevant to state law discrimination and retaliation claims. Most states have equal protection clauses in their state constitutions. The reasoning supporting the DOMA decision supports state fair-employment statutes. I believe this is true even for fair employment claims based on retaliation. As Justice Ruth Bader Ginsberg pointed out in her dissent in Nassar, retaliation is a form of discrimination. In other words, if you have been fired in retaliation for filing a workers’ compensation claim, your constitutional rights have been violated. If the Supreme Court had decided DOMA differently, employees would have a weaker argument that a retaliatory discharge violated their equal protection rights.

Employee Rights Hurt by Supreme Court Decisions

Posted on June 25, 2013 by Jon Rehm

Employee rights in the workplace took a step backward with the Vance and Nassar decisions made by the U.S. Supreme Court. So what does this mean in concrete terms for employees?

Vance: The main takeaway from Vance is that employees must tell upper management and human resources about workplace harassment. This has been federal law in the Court of Appeals for the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) and the 8th Circuit (Nebraska, Iowa, North Dakota, South Dakota, Minnesota, Missouri and Arkansas). In order to sustain a workplace harassment claim under federal law, employees must now be able to show that management knew about harassment and that management failed to take effective action against the harassment.

Nassar: Nassar made it more difficult to prove retaliation under federal law. In the 5-4 majority decision written by Justice Samuel Alito, the court wrote that it was concerned about the increase in retaliation claims filed in the EEOC and the potential for “frivolous litigation.” The effect of this case is that even more retaliation cases will be decided by judges under summary judgment instead of being decided by juries.

However, just because it is harder to bring a discrimination or retaliation case under federal law doesn’t mean that an employee can’t bring a case under state law that could be more favorable to the employee. But employees pursuing wrongful termination cases in state court should be aware that state court judges oftentimes follow federal court judges in interpreting state fair-employment laws. State court judges might find the Supreme Court’s concerns about “frivolous” retaliation suits to be well founded.

I think Justice Alito was off base in his concerns about “frivolous” retaliation where employees who are about to get fired file complaints in order to preserve their job or set themselves up for a wrongful termination lawsuit. Any competent employee-rights attorney knows that retaliation suits are difficult to win. I turn down about 9 out of 10 people who call my office who claim they were wrongfully terminated. Wrongful termination suits are costly and time consuming. I am not going to invest time and money in a suit where I will likely get dismissed and possibly face financial sanctions under court rules and also possibly be opened up to paying costs to the prevailing employer under federal fair-employment law. I am doubly suspicious of employees who are fired shortly after they file discrimination or other claims. Employers know that if they fire someone after filing some sort of complaint that it appears to look bad. But courts will uphold that reason if they had a legitimate reason to fire the employee. In other words, the employee who knows they are skating on thin ice and then files a complaint is going to lose a wrongful termination case. The decision in Nassar won’t stop disgruntled employees from filing claims with fair-employment agencies, it will just make it more difficult for employees with legitimate wrongful termination claims to obtain justice.

Is Insurance Still For Policyholders?

Posted on May 21, 2012 by Roger Moore

Insurance began in the Middle Ages, and policies could be written for almost anything. Policies were taken out to protect risks of trade, against the death of a head of state, and for many other forms of speculation. There was almost no limit on what a policy could be written for. Additionally, there was no shared risk as these policies were taken out only by individuals.

In the early 18th century, mutual insurance was created. Instead of individuals essentially placing bets that would pay off if tragedy struck, these policies created communities of members who were concerned with offsetting risk with reward. The lack of tragedy led to the payout of dividends to the members. Gradually, governments forced the transition of insurance from legal gambling on misfortune to companies behaving more like public utilities. Mutual-insurance companies helped the betterment of society with innovations like workplace-safety measures.

Over the last four years Edmund Kelly, former CEO of Liberty Mutual, has pocketed over $200 million in compensation.

In 1911, the first workers’ compensation insurance was written in Massachusetts in the form of a state-subsidized mutual-insurance company. Like most mutual insurance, the aim was the mitigation of risk by providing incentives to reduce risk and demanding small sums from each participant that were then combined into large sums for the victims or beneficiaries of the policy.

In the mid-1990s, insurance companies began pushing for legislation to authorize them to place their assets into holding companies that could then sell stock. Critics believed the policyholders were being divested of their ownership in such an arrangement, but little true resistance was brought to bear. What has transpired as a result of this shift is that increasingly the profits from insurance companies were being captured by its executive leadership instead of being reflected as profits and returned to its policyholders as dividends.

As such, 200 years after mutual insurance was created, history reversed itself. No longer was insurance sold to people who had a stake in the assets and risks on which they bet. The community no longer bore the rewards of mutual insurance as company profits were put in the hands of the elite leadership and not distributed across policyholders. One can surmise that policyholders also lost more control over how claims were handled than was anticipated when mutual insurance was created. Policyholders also likely see little incentive to follow risk-averse practices as they receive no return benefit in the form of dividends as they used to. When profit is the only goal in business only the business itself and, more specifically, its executives truly gain. One indication of this is Edmund Kelly, former CEO of Liberty Mutual. Over the last four years he has pocketed over $200 million in compensation.

Source: The Atlantic

Employers Must Obtain And Maintain Workers’ Compensation Insurance Coverage

Posted on February 9, 2012 by Todd Bennett

Your employer is required by law to have workers’ compensation insurance for you.

Every employer not in agriculture, farm or ranch operations is required to obtain and maintain workers’ compensation coverage for all employees. Those employers who voluntarily and willfully fail to obtain and maintain coverage violate the law and subject themselves to significant risks.

If you are an employee who is injured in the course of your employment and you learn that your employer has not maintained workers’ compensation coverage for you, you can either file a claim against the employer in civil court or file a claim in the Workers’ Compensation Court.

Employers who try to avoid their legal obligations and avoid providing workers’ compensation coverage expose themselves to monetary judgments in civil court, stop-work orders from the Attorney General’s office, injunctions from continuing to operate their business, assessments against their property, daily penalties of Continue reading →

Nebraska – A Rare Example Of How To Treat Student Athletes Better

Posted on November 17, 2011 by Rod Rehm

Can workers’ comp for Nebraska student athletes be an example for the NCAA?

Between the terrible events surrounding the Penn State football program, Mike Krzyzewski of Duke’s record-breaking win, and Taylor Branch’s controversial article in the September 2011 issue of The Atlantic magazine, there’s been a lot of coverage of college sports in the news lately. This isn’t necessarily unusual for Nebraskans. Our own University of Nebraska has one of the premier football programs, one which is revered by Cornhusker fans far and wide.

Recently, my good friends and fellow advocates for the injured, Charlie Domer and Len Jernigan wrote blog posts pointing out some of the challenges athletes face.

The bottom line of these posts is that athletes face serious health risks – from brain injuries to chronic obesity, and yet, in most states, collegiate athletes have only basic student health coverage to protect them and are prohibited by the NCAA’s strict rules from earning extra income to purchase additional coverage.

Since 1984, Nebraska law has provided additional protection for college athletes. Our schools offer a rare exception among college athletics programs by offering students a form of workers’ compensation.

In The Atlantic, Branch makes the point that the NCAA has treated college athletes unfairly for years. Schools profit tremendously from the risks student athletes take without compensating them beyond their college scholarships.

But Nebraska is different. Since 1984, Nebraska law has provided additional protection for college athletes. Our schools offer a rare exception among college athletics programs by offering students a form of workers’ compensation.

If we do continue to enforce amateurism in collegiate sports, perhaps Nebraska law can serve as an example for other states to follow.

This difference is because in 1984 the Nebraska Legislature enacted a law (Neb. Rev. Stat. § 85-106.05), which mandated that the University of Nebraska establish an insurance program to provide coverage to student athletes for personal injury or death while participating in university- organized games or practice in an intercollegiate athletic event.

This law covers students Continue reading →

What if you are an “independent contractor”?

Posted on November 7, 2011 by Brody Ockander

FedEx is notorious for making their delivery people “independent contractors.”

Often employers and workers’ compensation insurance companies deny workers’ comp, claiming employees are independent contractors. Independent contractors are not technically employees under Nebraska’s Workers’ Compensation laws (the same is true for most states).

In fact, employers and insurance companies often use the category “independent contractor” on purpose so that they can avoid having to pay for workers’ compensation claims for injured workers.

The thing is, even though your employer or insurance company may say that you are an independent contractor, there is a good chance that you are technically an employee, covered under workers’ compensation law.

According to the Nebraska Supreme Court you are either an independent contractor or an employee depending on:

The amount of control your employer asserts over you
Whether you are engaged in a distinct occupation or business
The kind of job you have (whether you are a specialist without supervision or not)
The skill required to do your job
Whether you supply the tools, place of work, and other things required to do the job
The length of your employment period Continue reading →

Workers' Compensation Watch

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Category Archives: Unfair employment practices

This Is How Americans Spent Their Money in the 1950s

White Picket Fences

Overturning DOMA Will Increase LGBT Rights in the Workplace

Why Overturning DOMA Is a Win for Employee Rights

Employee Rights Hurt by Supreme Court Decisions

Is Insurance Still For Policyholders?

Employers Must Obtain And Maintain Workers’ Compensation Insurance Coverage

Nebraska – A Rare Example Of How To Treat Student Athletes Better

What if you are an “independent contractor”?

White Picket Fences

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