Tag Archives: diversity jurisdiction

Tyson Foods seeks friendlier Federal venue for COVID betting case

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Tyson Foods is seeking to move the lawsuits from state to federal court of the surviving family members of Tyson employees who died of COVID-19 who sued the company over managers betting on COVID-19 deaths at totals of the company’s Waterloo, Iowa plant.

So why does it matter whether the case is tried in state or federal court? Part of the reason is the composition of the jury pool.

Jury pools in packing house towns

I had a jury trial scheduled the third week of April in Dawson County, Nebraska. The largest private employer in that county is Tyson Fresh Meats in Lexington, Nebraska. In the 27-person jury pool, I had four current employees of Tyson. There were likely other who had worked at Tyson or had friends or family who worked at Tyson.

But in a federal court jury pool in Nebraska, there are likely to be fewer jurors who work in meatpacking or know someone who works in meatpacking. Similar dynamics would likely be in play in Iowa which is demographically similar to Nebraska.

Why it’s harder for Tyson to remove the COVID-19 lawsuit to federal court than typical in this case.

Oftentimes cases against large employers are removed to federal court under so-called diversity jurisdiction because the employee and employer are citizens of different states.

However, the Iowa workers compensation act authorizes a tort claim against co-workers for work injuries due to gross negligence. The plaintiffs in the COVID-19 betting pool case are bringing this case under Iowa’s gross negligence law. Since the cause of action arises under Iowa’s workers’ compensation law, it can’t be removed into federal court.  

But Tyson isn’t arguing that for removal from state to federal court on diversity jurisdiction. Tyson is arguing for removal based on acting under a federal order during the height of the COVID-19 pandemic.

The Defense Production Act and pre-emption

In April 2020, then President Trump signed an executive order immunizing meatpackers for civil liability for COVID during the pandemic under the Defense Production Act. I wrote a post about the dubious constitutionality of that order last year.

19 State Attorney Generals from predominately Democratic-controlled states filed a brief in the 8th Circuit Court of Appeals arguing against removal. The brief gave a detailed explanation of why the Defense Production Act shouldn’t apply and also shot down other pre-emption arguments raised by Tyson.

Importantly, the brief for the Democratic AGs re-enforced the importance of state law in enforcing workplace safety laws. It will be interesting to see how the 8th Circuit Court of Appeals rules as it could reveal their thinking about whether federal courts are willing to apply federal law in traditional areas of state jurisdiction like workers’ compensation.

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.

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Pennsylvania court narrowly interprets workers’ comp. retaliation

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In a decision that was disappointing but not entirely surprising, a federal court in Pennsylvania held that merely getting hurt at work wasn’t enough to claim wrongful termination in retaliation for filing a workers’ compensation claim.  (h/t to Tom Robinson for his post on the case.)

At the core of this decision is assumption about employment at-will that often underlies the interpretation of all sorts of employment laws. Here is why I think the decision was wrong, why I think it was decided the way it was and what that decision means in the bigger picture.

Why I think the Pennsylvania court got it wrong

I think the Pennsylvania federal court made the wrong decision for many reasons. In Kasten v. St. Gobain, the United States Supreme Court held that a question about the location of the time clock constituted a protected activity for the purposes of the Fair Labor Standards Act. In other words, what constitutes a protected activity should be broadly construed.

Federal anti-discrimination law is also less than clear whether “protected status” and “protected activity” are really a different category. Justice Ginsburg made this argument in her dissent in the Nassar case. The reasoning behind this argument is that complaining about retaliation means that either you are member of a protected class or that someone in a protected class is being discriminated against.  In the case of a work injury, protections against discrimination should attach when an employee is hurt at work rather than when they formally file.  The reasoning supporting this proposition is that if formal filing of workers’ compensation is required, an employer is free to fire an employee who gets hurt but hasn’t filed a claim.

The importance of employment at-will

The rationale against these arguments in the Pennsylvania case was that workers’ compensation retaliation is an exception to employment at-will and the employment at-will exception should be construed narrowly by courts because of the importance of the “at-will employment” doctrine. This is a mainstream position held by most in the employment defense bar. Though employment at-will is rarely cited in federal case law involving employment issues, I believe veneration of employment at will underlies most decisions limiting the application of exceptions to employment at-will.

You can see the force of employment at-will at work in the Department of Justice’s brief arguing against including gender identity within Title VII. The argument for including gender identity and sexual orientation within Title VII is based on the “sex plus” theory in announced in the Price Waterhouse case. The DOJ narrowly construes the “sex plus” theory of discriination to argue that gender identity and sexual orientation aren’t per se covered by Title VII. That argument is supported by reasoning that requires injured workers formally file workers’ compensation claims in order to be protected against discrimination from their employers because of their injury. Both arguments rest on narrowly interpreteting exceptions to employment at-will.

Jursidcition and role of federal courts in workers’ compensation retaliation 

Another question is why was this case in federal court in the first place? Workers’ compensation and workers’ compensation retaliation cases are state law cases. But in the Pennsylvania case involved a federal ADA complaint so the court took jurisdiction under so-called pendent or ancillary jurisdiction.  Even in a purely state law claim a federal court can take jurisdiction through so-called diversity jurisdiction, if the employee and employer are citizens of different states as is often the case.

Federal law isn’t controlling over state law, but state courts often look to federal courts to interpret employment law. Federal judges have the chance to interpreter state law workers’ compensation retaliation cases in diversity jurisdiction cases In my view, federal district courts serve almost as a parallel appellate level court in Nebraska. So even if this Pennsylvania decision isn’t controlling authority, it will certainly persuade other courts faced with similar issues.

What the case means for injured workers and their lawyers 

This case stands for the proposition that injured workers are going to need to actively pursue workers’ compensation claims or risk having their retaliation claims dismissed for not engaging in the protected activity of filing workers’ compensation. This is often challenging because injured workers sometimes wrongly believe that aggravations of old injuries or overuse injuries aren’t covered by workers’ compensation. Employees may also feel that workers’ compensation is dirty or illegitimate and let that stigma discourage them from filing a workers’ compensation claim. Employers may also be discouraging employees from filing workers’ compensation claims through safety programs or by encouraging employees to shift the costs of a work injury on to private health insurance and or private disability insurance.

In short many of the same mental hurdles and practices that can complicate a workers’ compensation claim can also weaken an injured workers’ protections against discrimination.

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.

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