Tag Archives: Nebraska

New decade, new recession, same old Equifax and TALX

Posted on August 17, 2020 by Jon Rehm

Mounting unemployment claims cause distress for newly unemployed workers and create logjams for state labor departments tasked with processing and deciding unemployment claims.

But record unemployment means good times for one of America’s most hated companies – Equifax.

Equifax, TALX and unemployment

Equifax, better known for a data breach effecting 143 million in 2018, works with employers to defend unemployment claims through its TALX division. Back in 2010, when TALX was an independent company, TALX drew media scrutiny for its role in delaying and denying unemployment claims during the so-called Great Recession. Equifax bought TALX in 2012. Equifax/TALX has continued working with employers to deny unemployment claims.

Don’t get me wrong, employers have a right to defend unemployment claims. But on the occasions when employees push back against Equifax they often win. Equifax often no shows hearings. But many people just give up after a claim defended by Equifax gets denied. Competent legal representation can often help an employee get a denial of benefits reversed, but many if not most people don’t seek representation in unemployment appeals.

Justice delayed is justice denied

Fortunately, many people appeal denial of unemployment benefits. Pre COVID, the time between an appeal and a hearing was roughly four weeks. The last time I wrote about unemployment on June 22, the wait time increased from four to eight weeks between appeal and hearing. Last Friday, I filed a request for reconsideration on a dismissal where there was 12 week lag time between appeal and hearing. Claims that are denied by Equifax/TALX contribute to the backlog.

Justice delayed is justice denied, Part 2

Of the course the growing delays in unemployment appeals mirror the delays in applying for benefits and receiving benefits when approved. I think the Nebraska Appeal Tribunal, the court that hears unemployment appeals within the Nebraska Department of Labor, is doing a good job under the circumstances. The Tribunal normally operates under streamlined procedures where telephonic hearings have been the norm since at least when I started practicing in 2005. I believe the Tribunal is thinking outside the box to fairly manager its case load. If the Appeal Tribunal was less efficient, things would be much worse for unemployed workers.

But the state of Nebraska needs to invest in improving the infrastructure for unemployment claims. The Legislature also needs to look in to cracking down on TALX/Equifax next session.

TALX is another example of the problems created by companies outsourcing human resource decisions. FMLA leave is often tied to private disability policies. This link between leave and disability insurance which creates all sorts of hassles for employees when medical personnel, human resources departments and insurers fail to communicate. Maybe a new Secretary of Labor will scrutinize the problems caused by outsourced HR functions. I hope Congress will focus on theses issues as well.

Did it get easier for employers to dodge workers’ compensation in Nebraska?

Posted on August 10, 2020 by Jon Rehm

A recent Nebraska Supreme Court decision, Abotyes-Mosqueda v. LFA, made it harder for some workers to claim workers compensation benefits and easier for employers to classify workers as independent contractors.

Statutory employer

In this case the plaintiff attempted to join LFA as his statutory employer. A statutory employer is a contractor who works with a subcontractor in order to avoid liability under the Nebraska Workers Compensation Act. LFA subcontracted with Ismail Huerta who recruited a crew that included in the plaintiff. Huerta did not have workers compensation insurance. When plaintiff was hurt, he claimed workers compensation against LFA.

In his favor, plaintiff had evidence showing that after the injury LFA required Huerta to obtain workers’ compensation insurance. That would point towards LFA being a statutory employer.

But the court found that the plaintiff could only join LFA as a statutory employer if he was an employee of Huerta. The court found he was not actually employed by Huerta. The court used a 10 factor test to determine that plaintiff was an independent contractor.

I would note that the court merely went through the traditional 10 factor test rather than look to the economic reality of the relationship between Huerta and the plaintiff. Nebraska appellate courts have traditionally done that analysis. I am not sure if that would have made a difference in this case, but I wish the court would have asked and answered that question.

The ABC Test

The question of whether the plaintiff was an employee likely would have come down differently if the ABC test was applied. In the ABC test a worker is an employee unless: they are 1) free from control of work both under contract and in fact 2) service is outside of normal course of business and 3) the workers is customarily engaged in a trade, occupation, profession or business. The ABC test applies to unemployment benefits in Nebraska.

But there is another distinction between how employees are classified under Nebraska workers’ compensation and unemployment law.

Burden of Proof

Under the Nebraska Employment Security Act (unemployment) the employer has the burden to show they meet the ABC test. But the Nebraska Supreme Court held in this case, that it is the employee who has the burden to prove the employment relationship. The court made a very general citation to the act in support of this proposition. However employees do have the burden of proof to show they were injured arising out of and in the course and scope of employment. It will probably require legislation to shift the burden of proof on employment status onto employers in workers’ compensation cases.

More redeterminations by the NDOL as Nebraska unemployment appeals increase?

Posted on June 22, 2020 by Jon Rehm

In a first for me, the Nebraska Department of Labor reversed a finding that my client had quit without good cause and awarded my client full unemployment benefit without a hearing.

The procedure where the Nebraska Department of Labor reverses itself on benefit determination without a hearing is called redetermination. As unemployment claims and unemployment decision appeals increase, I believe the Nebraska Department of Labor will use increasingly use this procedure.

What is redetermination and how is different than appeal

Normally reversing a decision by a claims adjudicator requires filing an appeal under Neb. Rev. Stat. §48-634. The appeal usually leads to a hearing where an administrative law judge decides whether someone is eligible for unemployment benefits.

But Neb. Rev. Stat. §48-631 allows an adjudicator to reconsider their decision. They can reconsider based on newly discovered wages, miscalculated wages or determinations made on misrepresentations of fact.

Now misrepresentation sounds like and would apply to fraud by an employer or employee. But, 219 NAC 15 001-D(1) broadly defines misrepresentation for the purposes of redeterminations. For the purposes of redetermination, ignorant misrepresentation can prompt a redetermination. A lawyer may know how to obtain documents or know what documents to submit to prove a case for unemployment that a newly unemployed worker wouldn’t have thought to submit initially.

Why I think increasing in unemployment claims will lead to more redeterminations?

First, I think the Nebraska Appeal Tribunal, the court that hears unemployment appeals, is looking to manage their case load. As a result of the pandemic, I estimate the case load at the Tribunal has nearly tripled since before the COVID pandemic.

Consequently the increase in case loads since the pandemic has doubled the time between appeals and hearings from about four to eight weeks. But by law, the Appeal Tribunal wants to schedule hearings as soon as possible. But one advantage to a longer lag between appeal and hearing date is having more time for discovery.

With more time, a lawyer can submit those documents to the Tribunal well in advance of hearing. By submitting those documents to the Department of Labor, the Department can make a redetermination short of hearing.

Redetermination as summary judgment?

In regular civil cases, courts can dispose of cases through summary judgment. Summary judgment is a disposition of a case based on documents without a trial. The purpose of summary judgment is to speed up case resolution and save court time.

However the Nebraska Appeal Tribunal lacks a summary judgment procedure. In normal times something like summary judgment is unnecessary. However as appeals back up, the redetermination procedure may function as a form of summary judgment in the Nebraska Appeal Tribunal.

Redetermination isn’t always the end

But, parties can still appeal from a re-determination — this means employers. But in my experience, employers are less likely to appeal determinations that go against them. Addtionally, the CARES Act makes it less likely that employers will have their rates go up or be charged if an employee quits with good cause or is fired without good cause. This lessens their reason to file an appeal

Want to really be “open for business”? Outlaw discrimination against younger workers in Nebraska

Posted on February 3, 2020 by Jon Rehm

One way to attract and keep young workers in Nebraska; stop discriminating against them/

Last week, the Nebraska Chamber of Commerce joined their companion organizations in Omaha and Lincoln in endorsing amending Nebraska’s fair employment statute to outlaw discrimination based on sexual orientation and gender identity.

Proponents of expanding civil rights protections to LGBT Nebraskans have pitched this proposition as an economic development tool meant to keep and attract younger Nebraskans who would otherwise flee a state that allows discrimination not allowed in other states.

Maybe I’ve spent too much time tangling in the trenches with lawyers for Nebraska’s big businesses. Maybe I’m just a Bernie Bro. Maybe both, but I have a hard time keeping my eyes from rolling when I hear the “Open for Business” approach to civil rights parroted by professional progressives in our state’s unicameral and mini-Beltway. (Lincoln has a K Street with tons of lobbyists offices, just like D.C.)

I mean for-you-know-what’s sake, any employment protections endorsed by the Chamber of Commerce are bound to be milquetoast at best.

But let’s assume some merit to the “Open for Business” approach. Let’s assume civil rights laws are an economic tool. How else could civil rights laws in Nebraska be amended to help attract and keep young people in Nebraska?

How about amending our age discrimination laws to prohibit discrimination against younger workers?

Miami (of Ohio) University Professor Megan Gerhardt argued for this in a recent opinion piece for NBC News. I made a similar argument in a blog post last year. In that post, I pointed out that at least Canadian province protects workers as young as 18 in their age discrimination laws. I also pointed out that since younger workers tend to get hurt more, anti-youth bias is a way to discriminate against injured workers.

I can tell you from first hand experience, that many business types talk about “millennials” or young people in a way that would get them successfully sued even in a jurisdiction like Nebraska, if they spoke like that about a group protected under our civil rights laws.

If Nebraska really wants to keep and attract younger workers, we should amend our age discrimination laws to protect younger workers. While I support expanding our state’s employment laws to protect LGBT Nebraskans, any comparative advantage Nebraska would get in expanding those laws would be lessened if the Supreme Court expands federal civil rights law to outlaw discrimination based on sexual orientation and gender identity. Questioning by Justice Neil Gorsuch at oral argument in October 2019 on the issue has many LGBT rights advocates optimistic that the court will expand Title VII.

By expanding our age discrimination laws to include younger employees, Nebraska would truly be innovative. Nebraska is unique among states in having a one house (unicameral) and non-partisan legislature. This unique legislative body should start passing some more unique laws.

Neb. Ct of Appeals tightens notice requirements in workers’ compensation cases

Posted on January 13, 2020 by Jon Rehm

The Nebraska Court of Appeals held that waiting 38 days to report a work injury was enough delay in reporting to dismiss a workers’ compensation claim. Though what constitutes timely notice is a case by case determination, the Bauer v. Genesis Health Care case is troubling for workers for many reasons.

Fear of retaliation not an excuse for not reporting injury – In the Bauer case the employee was worried about his job security and testified this one reason he delayed reporting his work injury. The suspicions about termination weren’t unfounded as the employee as put on leave 10 days after his injury. The Nebraska Court of Appeals disregarded this argument and found the plaintiff would have still been able to report his injury.
Change in personal plans can trigger duty to report work injury – The law requires that an employee report an injury as soon as practicable. “As soon as practicable” can vary by the circumstances. The key fact is that the employee knows something could be wrong because of a work injury. In this case the fact the employee cancelled a personal trip a week after the work injury was one fact that persuaded the court the that plaintiff did not report his injury as soon as practicable.
Stricter reporting standards for medical personnel – The court thought it was relevant that the injured worker was a physical therapy assistant was relevant to their conclusion that the employee did not report their injury as soon as practicable. Their theory was that professional knowledge should have lead him to conclude he needed treatment and that the injury should be reported. I wouldn’t be surprised to see insurers and their attorneys try to broaden this argument to all types of medical personnel.
Change in work duties can trigger duty to report – The Bauer case was unusual in that since he was a manager he could place himself on light duty without asking permission. Usually asking for light duty would be enough notice for an employee to meet the notice requirement. But since Bauer didn’t ask, he didn’t put his employer on notice about his injury. Employees who work with co-workers to change job duties to accommodate a work injury may be vulnerable to having their workers’ compensation cases dismissed for lack of notice, if they don’t report a work injury to a supervisor soon after their duties change.

Other takeaways from Bauer

Referral to specialist probably triggers a duty to report — Bauer cited to Williamson v. Werner, where the court held that an employee should have reported their injury to their employer after they reported it to their doctor. That didn’t happen in Bauer as the employee denied he was hurt at work at his first two medical visits. The court thought it was relevant that at the first visit after the work injury that he was referred for an MRI and to a specialist, yet did not report his injury to his employer.
Appearances matter – Bauer had some other bad facts working against him: 1) He didn’t report his work injury until after he had been placed on leave and 2) He twice denied that he was hurt at work to providers. The court stated an employee who provides proper notice of an injury is one that is acting in good faith or honestly. Changes in stories about how an accident happened or irregularities in reporting don’t create an impression of good faith even if they can be explained. But if fear of termination is the explanation of why an employee doesn’t report a work injury, the Bauer decision indicates Nebraska courts won’t consider that factor.
How the fear of retaliation harms workers’ compensation and retaliation claims – The Bauer case represents a common situation where an employee doesn’t turn in a work injury over fear of retaliation. Workers’ compensation retaliation is unlawful, but it is difficult for an injured worker to claim retaliation if they don’t report their work injury. So fear of retaliation can undermine both a workers’ compensation claim and a retaliation claim.

How Nebraska law shortchanges injured workers

Posted on November 18, 2019 by Jon Rehm

Workers compensation is a defined benefit that pays certain benefits for work injuries regardless of fault. But when defined benefits aren’t well-defined, injured workers get short-changed when it comes to workers compensation disability benefits.

Underpayment of benefits is already baked into Nebraska workers’ compensation law for some workers. Nebraska usually does not take overtime pay into consideration when determining disability benefits. Nebraska also caps workers’ compensation benefits at a maximum rate.

Here is the how and why fuzzy math can lead injured workers can get underpaid benefits in Nebraska. I think you can break down the reasons that workers get underpaid into disputes over wage rates and the time periods they are entitled to benefits

Wage rate

Average weekly wage and abnormally low weeks

Permanent and temporary disability benefits are controlled by the average weekly wage under the Nebraska Workers Compensation Act. The average weekly wage is usually based on an average of the past 26 weeks of wages minus “abnormally low weeks”. What’s an abnormally low week? There isn’t a hard and fast rule. For the purposes of permanent disability Nebraska workers compensation law assumes a 40 hour work week. This assumption helps address underpayment issues for permanent disability.

But no such assumption exists for temporary disability under Nebraska workers compensation law. So insurers and claims administrators have wide latitude to underpay temporary benefits. This is particularly harmful as workers who are temporarily disabled are often entirety unable to work.

Shift differentials

Workers who work evening and overnight shifts often get paid shift differential on top of base pay. Particularly if a worker works a combination of day and evening shifts, workers compensation benefits tend not to account for shift differential.

Time Period

The gap between temporary and permanent disability

Nebraska law is unclear as to when temporary disability ends and when permanent disability ends. Not only does this mean injured workers can go months or weeks without benefits, it also means that workers can be underpaid benefits. Usually this underpayment is accomplished by shortening the period of temporary disability paid.

Neb. Rev. Stat. §48-119

Under Nebraska law, the first week of disability after a work injury is not compensated unless the disability lasts for more than six weeks. This tends to happen with injuries that don’t lead to quantifiable impairments. Sometimes, employees under pressure from employers, will be released to work too soon. Insurers and claims administrators view premature returns to work as an excuse to deny temporary disability because they employee is already at maximum medical improvement

The bottom line on underpayment of workers’ compensation benefits

If employees take these claims to court, they can often win back due benefits. These monetary amounts are meaningful for injured workers, but they may not always be cost-effective for an attorney to pursue.

In wage and hour cases under Nebraska and federal law successful claimants are awarded attorney fees that can be much greater than the lost wages collected. These fees encourage lawyers to take these cases.

But under Nebraska workers compensation law a successful claimant needs the court to find there was no reasonable controversy in law or fact for the court to award attorney fees and penalties under Neb. Rev. Stat. 48-125. This is a difficult standard. This difficult standard is made more difficult over disputes over average weekly wage because average weekly wage is a question of law and fact.

In short, Nebraska workers compensation law gives insurers and claims administrators wide latitude to underpay injured workers. But since under Nebraska law it is very difficult to win attorney fees in under Nebraska law, insurers and claims administrators have little to fear in the way of penalties and attorney fees if a court rules they underpaid benefits to an injured worker.

Will Medicare beneficiaries see faster settlements?

Posted on March 28, 2019 by Todd Bennett

“How much will my case settle for ?” and “When will I get my settlement?” are two of the biggest questions asked by clients in a workers’ compensation or personal injury case. Medicare beneficiaries will soon better know the answers to these questions.

As of April 1, the Centers for Medicare and Medicaid Services will allow conditional payments to be made electronically. The change to an electronic payment system will allow all authorized users to view the updated demand status of CMS and track electronic payments in the “Electronic Payment History” tab.

This change should allow Medicare beneficiaries who have a workers’ compensation or personal injury claim to have their cases settle sooner and receive their settlement proceeds sooner.

A Medicare conditional payment is a payment made by Medicare in a disputed workers’ compensation or personal injury case. In a conditional payment situation Medicare will pay on a medical expense but demand that they be paid back from the proceeds of a settlement or judgment.

In substance a conditional payment issues is like any other subrogation issue where some form of health insurance pays for an injury that should be covered under workers’ compensation or a liability policy. In all cases, the plaintiff needs to know how much can be repaid so they can settle a claim and know what they might receive in a settlement.

In a Nebraska workers’ compensation case, under Neb. Rev. Stat. 48-120(8),a judge can order that a third-party who paid for medical care that was related to be a work injury be reimbursed for payments made on behalf of an injured worker.

The problem with Medicare is that the conditional payment process is often more burdensome than determining a subrogation or repayment interest from other types of insurers – it often takes longer as well. Hopefully electronic payment and tracking of payments will simplify and speed up settlements involving Medicare beneficiaries.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: Nebraska

New decade, new recession, same old Equifax and TALX