Category Archives: worker rights

Gorsuch, Chevron and Workplace Law

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Judge Gorsuch

Judge Gorsuch

Employers and their attorneys are widely hailing President Trump’s nomination of 10th Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court. Part of the reason that management-side lawyers are praising Gorsuch is his position on Chevron deference. Gorsuch’s views on Chevron could affect how workplace laws are interpreted and how they apply to workers.

Chevron deference is a legal rule that a court will give the benefit of the doubt about the interpretation of the law to how the executive agency charged with enforcing that law understands the law. Gorsuch has criticized Chevron on separation of powers basis, stating that Chevron deference gives too much power to the executive branch at the expense of the legislative and judiciary branches. Recently, government agencies have been interpreting employment laws in a way that is more favorable toward employees. Recent rules issued by the Equal Employment Opportunity Commission regarding the Americans with Disabilities Act are a prime example.

Many workers who get hurt on the job are told that they must come back to work with no restrictions. Chevron deference could be a powerful legal tool for workers faced with such policies. The new EEOC regulations on the ADA outlaw 100-percent-healed policies or policies that require plaintiffs to return to work without restrictions. In the EEOC guidance on the issue, the EEOC cites Kaufman v. Peterson Health Care VII, LLC 769 F. 3d 958 (7th Cir. 2014) as an example of policies that they believe to be unlawful under ADAAA. This case represents a subtle but real shift from current 8th Circuit law as stated in Fjellestad v. Pizza Hut of America, 188 F. 3d 949, 951-952 (8th Cir. 1999) where the 8th Circuit joined other federal circuits that held that failure to engage in an interactive process in accommodating a disability was not per se discrimination, and that there was no duty to engage in the interactive process. The EEOC’s interpretations of the new regulations still require that a plaintiff be able to perform the essential functions of the job with or without reasonable accommodation.

But as indicated by Kaufman, courts may be less likely to dismiss cases before trial, or in legal terminology, to grant summary judgment, on the issue of whether a plaintiff could perform the essential functions of the job with or without accommodation if the defendant does not engage in an interactive process or summarily decides that an employee should not be allowed to return without restrictions.

The fact that there is a split between regional appellate courts, a so-called circuit split, over “100 percent healed” policies increases the chances that the U.S. Supreme Court will decide whether 100-percent-healed policies violate the ADA. Another issue where there is a circuit split that the U.S. Supreme Court will decide is the legality of mandatory arbitration clauses in employment agreements.

Many workers unwittingly give up their rights to have employment-law disputes heard in court when they agree to mandatory arbitration clauses as a term of employment. In D.R. Horton Inc., 357 N.L.B. No 184 (2012) the National Labor Relations Board ruled that mandatory arbitration clauses prohibited Fair Labor Standards Act collective action cases because they interfered with protected concerted activity under 29 U.S.C. §157 and 29 U.S.C. § 158. In Lewis v. Epic Systems, 823 F. 3d 1147, 1154 (7th Cir. 2016), the 7th Circuit struck down a mandatory arbitration clause partly based on giving Chevron deference to the NLRB’s decision in D.R. Horton. The 9th Circuit agreed with the 7th Circuit in Morris v. Ernst and Young, LLP, No 13-16599 (Aug. 22, 2016). Unfortunately for plaintiffs, the 8th Circuit disagreed with the D.R. Horton decision in Owen v. Bristol Care, 702 F. 3d 1050 (8th Cir. 2013).

If confirmed, Gorsuch would be unlikely to give much weight to the opinions of the EEOC or NLRB in interpreting employment laws. Chevron deference is an unpopular concept with pro-business conservatives. Recently, the GOP-controlled House of Representatives passed legislation that, if enacted, would abolish Chevron deference.

Conversely, Chevron deference is a popular concept with progressive employee and civil-rights advocates, as it allowed the Obama administration to expand employee protections in the face of a hostile Congress. But with the advent of the Trump administration and his immigration policies, progressives have a newfound appreciation for separation of powers.

Also, employee advocates probably will not like many of the new rules and regulations issued by Trump appointees such as Labor Secretary nominee Larry Puzder. A prospective abolition of Chevron could be helpful to challenging rules made by a Trump administration. An example from the last Republican administration is instructive. In 2007, the U.S. Supreme Court in Long Island Care at Home Ltd. v. Coke, 551 U.S. 158 (2007) gave Chevron deference to Bush administration rules to exclude home health aides from coverage under the FLSA. It was nine years later that the rule was overturned, giving Chevron deference to Obama administration rules regarding home health aides and the FLSA.

Are Graduate Students and Teaching Assistants Employees in Nebraska?

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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.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Nebraska, worker rights and tagged , , , , , , , .

Workplace Flexibility: Good For You and Your Employees

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

Even though National Work and Families Month was in October, I think this topic is a good discussion to encourage employers and business owners to consider anytime during the year. As we have discussed in the past, not everyone has the luxury of benefits at their jobs. But benefits can be an extremely important part of the overall compensation package, including paid sick leave and workplace flexibility. As is evidenced below, employers can also reap great benefits from providing such flexibility, especially when it comes to increased worker loyalty and productivity. That includes offering schedules that are concrete for workers so they don’t have to “choose between … job or … family.” In addition, there are definitely benefits of goodwill and there might even be cost savings when a person, regardless of job, stays home when sick, instead of passing the illness around the workplace and other workers taking that illness home to loved ones. Another example is for anyone who drives for work. A sickness on the road and working while sick could very quickly become an employer’s safety issue that could endanger both the employee and the general public, if being forced to work led to an accident.

A March 2014 article by Bryce Covert discusses the reality of what paid sick leave (and I would argue workplace flexibility) did in one state, in addition to humanizing service-sector workers and spreading caregiver tasks out over more family members. Researchers Eileen Appelbaum and Ruth Milkman from the Center for Economic and Policy Research surveyed Connecticut employers and “they found that ‘everything they were worried about, that workers would take all the time available, employees would abuse it, did not happen,’ she said.”

“Only 11 percent of Connecticut’s businesses had costs increase by 3 percent or more, their study found, while about two-thirds said there was either no cost or a small one. The vast majority said there were no cases of abuse. In fact, while the law provides workers with five paid sick days a year, on average they use just four. Half of them used three days or fewer, and a third didn’t take any at all. ‘It’s not that you give workers a paid sick day and they run out and use every single one,’ Appelbaum noted. ‘From the point of view of employees, these paid sick days are a form of insurance,’ and workers hold on to them in case they need them in the future.”

Because as you should read below, regardless of the size or type of business, in the long run, workplace flexibility can be very good for business.

 

Kimmich-1024x768Small business owners know that things don’t always go as planned, and the same is true for their employees. Even the family responsibilities that we can plan for sometimes require a balancing act: nearly two-thirds of American women with a 1-year-old child are in the labor force, and approximately 16.8 million adults over 55 years of age provide unpaid care for elderly loved ones. That’s why workplace flexibility policies that allow employees to balance the demands of work and home are vitally important − especially paid sick days, paid parental leave and flexible scheduling.

These policies also give employers a competitive advantage in attracting and retaining top talent, increase employee creativity, increase productivity, increase profitability, and boost employee morale.

Many large companies have made headlines when offering workplace flexibility policies (Netflix, Google and Microsoft to name a few), but flexible workplace policies are good for small businesses, too.

During National Work and Families Month, the U.S. Small Business Administration (SBA) and the Labor Department are supporting businesses’ efforts to make the country’s workplaces more fair and family-friendly by creating a Workplace Flexibility Toolkit. It’s full of helpful tips and ideas to help small businesses implement smart workplace flexibility policies.

Small businesses all over the country already are reaping the benefits of such policies:

“Years ago my husband, John, and I decided to offer…

[Click here to see the rest of this post]

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Reforms, U.S. Department of Labor, worker rights, Working from Home and tagged , , , , , .

April 28: Celebrate Workers’ Memorial Day and World Day for Safety and Health at Work

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Workers’ Memorial Day and World Day for Safety and Health at Work is set for April 28 this year. The history of Mary “Mother Jones,” whose name graces a progressive magazine, is noteworthy. She fought tirelessly to improve worker safety, and events such as Workers’ Memorial Day are part of her legacy. 

A recent article from John Speigelhoff and Dale Moerke, a pair of Minnesota labor leaders, shares some of her history and calls attention to Workers’ Memorial Day.

I agree with the authors’ closing thoughts, quoted below, and encourage all of our readers to remember and observe Workers’ Memorial Day in some way. I also encourage all worker advocates and activists to keep up the hard work and dedication, because the efforts to limit and outright take away worker protections seem to be like the coming and going of the tide. It never ends.

“On April 28, 2015, take a moment to reflect upon those who have come before us and tirelessly championed the cause of a safer workplace, oftentimes being beaten and imprisoned for their advocacy. Every worker deserves to come home safe to their family. It is only when we remember our history, view ourselves (workers) as having a common bond and demand better working conditions will we prevent tragedy.  Observing Workers’ Memorial Day is the first step.”

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in AFL-CIO, Legislation, Memorial Day, OSHA, worker rights, Workplace Injury, Workplace Safety and tagged , , .

How Employers Can Abuse FMLA

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Our colleague, Tom Domer in Milwaukee, recently criticized the media for their misleading coverage of “FMLA abuse” among public employees in Milwaukee. This criticism parallels our criticism about misleading coverage of an unemployment decision in Iowa. Domer pointed out correctly that FMLA leave is unpaid. The fact that FMLA leave is unpaid leave makes it possible for employers to abuse FMLA.

I represented a client with a personal health condition that temporarily prevented that person from doing heavy lifting. My client told human resources about this health condition, and that person was forced to take unpaid FMLA leave. Of course, under the Americans with Disabilities Act, there is an obligation to engage in an interactive process to determine what reasonable accommodations could be made so the disabled employee can perform the essential functions of the job. In the case of my client, there was evidence that that person’s employer did not engage in that process. Though my client’s case ultimately resolved, I doubt that my client is the only person who has had a similar experience with forced FMLA.

I suspect some employers use unpaid FMLA leave as a way to reduce payroll expenses even if an employee could perform the essential functions of their job with a few simple accommodations. So the next time you hear about employees abusing FMLA, remember that employers can abuse unpaid leave as well.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in FMLA, unpaid leave, worker rights and tagged , , .