Tag Archives: Supreme Court

U.S. v. Washington: A rock, paper, scissors theory of federal preemption of workers’ comp. laws?

Posted on by

Summary: When it comes to the interaction of federal law and workers’ compensation, federal laws invoking national security are the rock that crushes state law scissors, but federal laws regulating the domestic economy more are more like paper which cut get by scissors.

The Supreme Court stuck to intergovernmental immunity and stuck it to ill workers at the Hanford nuclear site in eastern Washington state.

In a 9-0 decision written by now retired Justice Stephen Breyer the court held in United States v. Washington, that Washington state could not enact a presumption of compensability under their state workers’ compensation act for workers made ill at the Hanford nuclear site. The court ruled that the presumption unlawfully discriminated against the federal government.

For 30 years the Department of Defense and Department of Energy produced plutonium for nuclear weapons at the Hanford site. The state of Washington passed legislation to make it easier for workers at that site to collect workers’ compensation benefits under their state law. The federal government challenged the law. Ultimately the court relied on the landmark case of McCulloch v. Maryland to hold that Washington’s law impermissibly discriminated against the federal government.

A decision of limited impact?

Justice Breyer’s opinion included no discussion of the merits of presumptions in workers’ compensation or the substance of workers’ compensation laws at all. I was somewhat concerned about where such discussion could lead. The United States Supreme Court had addressed workplace injuries cases involving nuclear plants in the Goodyear Atomic and Silkwood cases.

In both cases the court had rejected arguments from employers that certain workers’ compensation laws and tort laws were impermissible state regulations of an industry that was the regulatory responsibility of the federal government. But there were dissents in both Silkwood and General Atomics that would imply presumptions of compensability would be impermissible burdens on the federal government Fortunately, for worker-advocates, those dissenting opinions weren’t addressed by the court – even in a dissenting opinion.

An outlier decision?

I believe United States v. Washington is an outlier when it comes to the interaction of workers’ compensation laws and federal laws. Recently, the court declined to hear a Minnesota case that would have resolved the issue of whether states can require insurers to pay for medical marijuana. Marijuana is illegal under federal law and many states believe that law preempts state’s from requiring it to be covered under workers’ compensation laws.

Last year the court also declined to resolve a conflict between states and federal circuits as to whether the federal Airline Deregulation Act (ADA) preempted state laws requiring air ambulances charges to be paid at discounted rates under state workers’ compensation laws.  The court also declined to hear challenge under the ADA from airlines against a Washington state law requiring paid leave for airline workers.

So why did the Supreme Court take up the Hanford case? I believe because of the national security implications of the case.

Federal supremacy and national security

Though Justice Breyer didn’t expressly mention national security in his opinion in United States v. Washington, the federal government clearly alluded to it in their brief.  The federal government brought up Hanford’s role in the development of the atomic bomb during World War II.

Interestingly enough, in his last reported decision as a Supreme Court justice, Breyer penned the majority opinion in Torres v. Texas Department of Public Safety. In that case, a 5-4 majority held that states did not have sovereign immunity from private suits under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

In Torres, Breyer wrote that the authority of Congress to build and maintain the armed forces under Article I, Sec. 10 of the Constitution overrode state sovereign immunity when it comes to suits against states under USERRA.

Though Torres and United States v. Washington lead to opposite outcomes for the employees involved in the case, they both demonstrated how the “rock” of national security beats the “scissors” of state sovereignty when it comes to the Supremacy Clause. Recent Supreme Court decisions relating to the interaction between workers’ compensation law and federal law regulating the domestic economy, show that those federal interests are more like “paper” which gets cut by scissors.

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 Uncategorized and tagged , , , .

Hopefully SCOTUS just sticks to intergovernmental immunity in Hanford occupational disease presumption case

Posted on by

The United States Supreme Court is set to hear arguments Monday on what is hopefully the narrow issue of whether inter-governmental immunity applies to a Washington state law that creates a presumption of compensability for occupational diseases for workers at the federal Hanford nuclear site.

Under the Supremacy Clause, states can’t tax or regulate federal entities without the permission of the federal government. During the New Deal era, Congress allowed state workers’ compensation laws to apply to workers’ on federal projects.

In United States v. State of Washington, the federal government is arguing the State of Washington is unlawfully discriminating against the federal government by enacting a law that only applies to workers at the Hanford site. The state of Washington amended the statute to apply the presumption to all nuclear workers and is arguing the federal government’s case is now moot.

So why should anyone outside the state of Washington care about this case? Beyond the conflict between state workers’ compensation laws and federal law (what Professor Micheal Duff sometimes deems empty preemption), this case interests me because it places the issue of issue of burden-shifting presumptions in front of the United States Supreme Court.

To be clear, the federal government isn’t contesting the state of Washington can create presumptions. But in the wake of the COVID-19 pandemic, many states created presumptions of compensability for COVID-19 exposure in the workplace because of the difficulty of proving whether COVID-19 was covered under traditional workers’ compensation statutes. Some of the employer/insurer-side of workers’ compensation are complaining about the unfairness of these presumptions. Thankfully, no one from the employer/defense-side has filed an amicus brief in this case.

However, the Workplace Injury Law and Advocacy Group (WILG) filed a brief in support of the Washington law. (I am a board member for WILG) I think the WILG brief does a good job of arguing that workers’ compensation is traditionally a state law concern and that presumptions have been found constitutional by state Supreme Courts. But I have a lingering fear about some footnote, dicta, concurring opinion or dissent that criticizes the idea burden-shifting presumptions in general. While that language wouldn’t be controlling on states, it could certainly be persuasive for parties seeking to challenge presumption laws.

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 Uncategorized and tagged , , , .

Supreme Court holds state laws against drug price hosing not preempted by ERISA

Posted on by

The Supreme Court ruled 8-0 that state laws regulating pharmacy benefit managers (PBMs) were not pre-empted by the federal Employee Retirement Income Security Act (ERISA). The substantive outcome and the reasoning on preemption could impact workers compensation issues like opioid prescription abuse and air ambulance charges.

Opioid use

Many states have introduced drug formularies or lists of approved drugs  to limit opioid use and abuse in workers’ compensation claims. Drug formularies are run by pharmacy benefit mangers or PBMs which make their money negotiating discounts between drug companies and drug dispensaries. Critics of PBMs argue that their business encourages higher drug prices so they can make more money on the supposed discount.

One Ohio workers’ compensation official stated that a PBM was “hosing” the state of Ohio with high costs in their drug formulary. The new Supreme Court decision could encourage states to adopt formularies in workers’ compensation without having to worry about unfair drug prices.

I emailed fellow workers compensation Jon blogger, Jon Gelman, that I was semi-pleasantly surprised about the decision on PBMs. My feeling that the federal rock of preemption will usually crush the state scissor of state workers’ compensation laws is a common feeling in the plaintiff’s bar. But Justice Sotomayor’s no-nonsense opinion in the Rutledge case, indicated that the supposedly broad pre-emptive effect of ERISA isn’t as broad as commonly believed.

Air ambulance charges

The Rutledge decision gives me some hope about another conflict between federal law and state workers’ compensation law – air ambulance billing. The issue with air ambulance billing poses the federal governments right to regulate air travel charges through the Airline Deregulation Act (ADA) against the right of a state to regulate insurance charges. The issue is important because of the high cost of air ambulances.

Federal and state courts have almost uniformly held that the federal law on air travel preempts state law on what air ambulance providers can charge. But the Supreme Court has used the preemption language in ERISA as a model for interpreting airline deregulation law.

The Supreme Court may soon take up the issue of whether state regulation of air ambulance charges is preempted by federal law. The air ambulance industry has filed an appeal with the Supreme Court asking to overturn a Texas state supreme court decision that held that state laws regulating air ambulance charges was not preempted by federal law. Since there is now a conflict between jurisdictions involving a large state like Texas, the Supreme Court may take up the issue.

One interesting fact about Texas workers’ compensation law is that they do not fee schedule air ambulance charges. The Texas Supreme Court used that fact to distinguish their decision from other decisions involving state laws that were preempted because of a fee schedule. Personally, I think if Texas won in the Supreme Court because of the fee schedule issue, that would be a hollow victory. I believe the use of fee schedules benefits workers because it keeps disputes between payors and medical providers out of court.

Mc Carran-Ferguson

Workers’ compensation laws are commonly regarded as insurance laws, so there is a strong argument that they should not be preempted under the McCarran- Ferguson Act. That law holds that insurance regulation is a state concern. McCarran-Ferguson is often referred to as “reverse preemption” law . A concurring opinion in the Texas Supreme Court air ambulance discussed McCarran-Ferguson in depth. However, the dissenting opinion in the case held that workers’ compensation was not a law regarding insurance but a law that regulates the relationship between the employee and employer. If the Supreme Court takes up the Texas appeal, it may answer the question of whether workers’ compensation is a law about insurance or the workplace relations? In doing so, it may jolt some long-held assumptions about 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.

This entry was posted in Uncategorized and tagged , , , , , .

Did the Supreme Court undercut ADA protections for employees of religious hospitals?

Posted on by

Last week the Supreme Court decided that two teachers working at Catholic schools could not sue their employer for discrimination because of the “ministerial exception” to federal workplace discrimination laws.

The Supreme Court clarified (or broadened) what kind of religious school employees are excluded from anti-discrimination laws. The Supreme Court held that the First Amendment’s Religion clause precluded courts from second guessing the reasons for firing ministerial employees. The court held there was no formula for who was a ministerial employee. The court stated that depended on the extent an employee conveyed the message of the church and carried its mission.

Arguably, the Morrissey-Berru decision and the Hosanna-Tabor decision which it relied on only apply to religious school teachers. Before these decisions, lower courts held that most religious school teachers were covered under federal civil rights laws. (See the dissent from Justice Sotomayor starting at page 37 of the opinion.)

Who else will be excluded from civil rights laws?

So, if churches have broader latitude to discriminate against employees, how broad is that latitude. Would this apply to nurses and nurses aides at hospitals affiliated with a church? Nurses and nurse’s aides are often injured at work. Because of this fact, they often need to invoke the Americans with Disabilities Act (ADA) and Family Medical Leave Act. (FMLA) Would a religious hospital argue the ministerial exception to argue the ADA and FMLA did not apply to a nurse or nurse’s aide hurt at work?

So far, at least in Nebraska and the Eighth Circuit I haven’t seen any cases where that happened. But Catholic Health Initiatives (CHI), a major health care employer locally, has some expressly religious statements in its mission statement. Would that language be enough to argue ministerial exception? Maybe not, but religious freedom advocates have advised employers about steps they can take to invoke the ministerial exception defense.

Another commonality between Morrisey-Berru and Hosanna-Tabor

I believe that major church-affiliated health care employers will continue to follow the ADA and FMLA. Major employers and their HR departments tend to be risk-averse. But in litigated cases, I believe outside counsel would push ministerial exception arguments.

Both the Hosanna-Tabor and Morrisey-Berru cases involved ADA claims. This fact fails to surprise me and I doubt that it’s entirely coincidental. From a practical perspective, ADA claims tend to be better cases for employees than other civil rights cases. I believe this is so because employers are more likely to botch ADA/FMLA compliance than other forms anti-discrimination laws. Arguing the ministerial exception is one way to defeat an otherwise valid ADA case.

A return to the pre-ADAAA bad old days?

But when I started practicing in 2005, ADA cases were harder to win. What changed was the ADA Amendments Act of 2008 which broadened the definition of disability. That change made ADA cases easier to prove.

Those changes to the ADA also made it easier for workers to heal from work injuries and return to work after injury. Pre-2008, if an injured worker was not ready to return to work after their 12 weeks of FMLA leave they would likely be fired. This threat often forced injured workers to attempt to return to work before they were ready. In tandem with “100 percent healed” policies, injured workers would also work with their doctors to downplay or eliminate work restrictions. An employee who returned to work with “no restrictions” before ready risked injury and also compromised the value of their workers’ compensation case.

But if courts extend Hosanna-Tabor and Morrisey-Berru to health care workers, the past is prologue for those workers. If courts extend these cases to hold the FMLA does not apply to health care workers, the future may be worse than the pre-ADAAA past.

Common law employment law claims?

Left unaddressed by the Supreme Court is whether religious employers can claim exemption from common law employment law claims. For example, Nebraska law makes it unlawful to retaliate against a worker claiming workers compensation. The Nebraska Workers Compensation Act covers churches and church employees. Arguably it would defeat the purpose of that law to allow churches or religious employers to retaliate against those employees.

On the flip side, Supreme Court cases about employment law tend to persuade state court judges. In her dissent in Morrissey-Berru, Justice Sotomayor criticized the ministerial exception as judge-made law. But the law prohibiting employers from retaliating against employees who claim workers’ compensation is also judge-made. That fact may make judges in Nebraska more willing to create a ministerial exception in common law anti-retaliation claims.

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 Uncategorized and tagged , , , , , , , , .

Why disability means different things in workers’ compensation and social security

Posted on by

Workers’ compensation benefits are described as temporary and permanent disability benefits in Nebraska. When many people hear the word disability they think or say “ I don’t want/need permanent disability, I can work.”

I understand the sentiment, but I think non-lawyers confuse Social Security Disability Insurance (SSDI) benefits with workers’ compensation disability benefits.

Broadly defined, disability means how a medical condition or injury impacts someone’s ability to earn wages. There are many differences between the workers’ compensation disability and social security disability, but so-called “non-scheduled” workers’ compensation benefits and SSDI benefits are both paid based on how an injury impacts your ability to earn a living. In both types of claims judges will rely on vocational counselors as experts in determining the extent of a person’s disability

But a recent United States Supreme Court decision, Biestek v. Berryhill, focused on two key differences between workers’ compensation and social security disability when it comes to evaluating the testimony of a vocational counselor — the standard used to determine disability and the procedures you can use to prove disability. The narrow issue in Biestek was the availability of jobs to the claimant within his work restrictions. I hinted at some of those differences in a post I wrote about Biestek, that you can read here. But here is some further explanation about the differences between disability for the sake of workers’ compensation and social security.

In short, it is easier to discover information about the availability of work in a Nebraska workers’ compensation claim than it is an SSDI claim. Injured workers’ also have more ways to investigate the availability of jobs in a Nebraska workers’ compensation claim than they do in a SSDI claim.

SSDI v. Workers’ Compensation: National vs. Local labor market

In order to obtain SSDI, there must be a finding that a claimant can not find work in the national economy. From reading the Biestek case, it’s fairly clear that the availability of jobs within the national economy is somewhat of a mystery based on spotty public information.

In contrast, in a non-scheduled injury in Nebraska, disability is determined first by the hub community, usually where the employee lives, and the available jobs within that community. One of the main points of contention in this type of litigation is what constitutes a reasonable commute. The questions of the cost of the commute in relation to expected wages and the injured workers’ ability to tolerate the commute are usually the most pertinent issues.

Attorneys for injured workers generally try to limit the size of a labor market for their clients as appropriate. The smaller the labor market, in general the easier it is to see the actual availability of jobs from public sources like online ads and even information from government agencies such as the Nebraska Department of Labor. This information makes it easier to check whether a vocational counselor is basing their opinion on accurate information.

Additionally, an attorney for an injured worker can even often get information about jobs available within the plant or worksite where they were hurt. Often times publicly available sources will only have one listing for large employers. Particularly in small towns in Nebraska, a large meatpacker might be the largest employer in town.  These employers will sometimes attempt to argue that the availability of jobs within their plaint is irrelevant in a workers’ compensation case because they can accommodate most any restrictions. At least during the investigation of a case, judges generally don’t find that argument persuasive. As a result an injured worker can find out what jobs they could do within a large manufacturing or food processing plant

SSDI v. Workers’ Compensation: Differences in procedure. Part of the reason that it is easier to probe the basis for an opinion by a vocational counselor in a Nebraska workers’ compensation court than in an SSDI hearing is that rules of civil procedure apply in the Nebraska Workers’ Compensation Court (See NWCC Rule 4). The rules of civil procedure allow a party to do investigation or discovery into the basis for an expert opinion. In Biestek, the Supreme Court basically stated that the decision would have turned out differently if the rules of civil procedure applied in social security proceedings.

In Biestek, the vocational counselor refused to turn over relevant information based on concerns about confidentiality and the Supreme Court held that was permissible. Because the rules of civil procedure apply in the Nebraska Workers’ Compensation Court, an employee is generally free to obtain information that is relevant or could be relevant to their case. (See Rule 6-326(a)(1))

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 Nebraska, social security, Workers' Compensation and tagged , , .

Appellate courts aren’t going to preserve workers’ compensation

Posted on by

The Supreme Court rejected a challenge to a “reform” of New York workers’ compensation laws made by Liberty Mutual

Employee advocates, me included, are still trying to process just how bad this latest session of the Supreme Court was for workers. There were bad decisions in wage and hour, whistleblower, forced arbitation and labor law. In lower profile decisions,  the court may have encroached into how work injury cases are litigated and rejected a constitutional challenge to state level reforms.

The Supreme Court may have handed employers/insurers a way to mount constitutuonal challneges to some state workers’ compensation laws in Lucia v. SEC. (Lucia is of more immediate concerns to Longshore and FECA practitioners who have their cases heard by ALJs ). In many states, like Iowa, workers’ compensation cases are heard by Administrative Law Judges that are hired as civil servants rather than appointed  by the Executive. SEC v. Lucia could help employers/insurers to make persuasive appointments clause arguments under state constitutions  that such arrangements are unconstitutional.

Advocates for injured workers have taken some solace in a string of good outcomes in front of state courts in Kansas, Pennslyvania, Oklahoma, Florida and Alabama. But even that run of state-level wins has come to a halt for now.

The Oklahoma Supreme court rejected a constitutional challenge  to Oklahoma’s mandated use of American Medical Association Guides (AMA Guides) to Permanent Impairment, Sixth Edition. Thomas Robinson pointed out the case was distinguishable from a Pennsylvania case strking down a law mandating the use of the “latest” guides because the Oklahoma legislature expressly adopted the AMA 6th to determine how they would pay scheudled member disability. 

Oklahoma isn’t the only state where consitutional challenges to anti-workers changes to workers’ compensation laws have failed recently. The Supreme Court denied certiorari — refused to hear an appeal — from a New York Court of Appeals decision overruling a contracts clause and takings clause challenge to New York’s workers’ compensation law by workers’ compensation insurer, Liberty Mutual. Liberty Mutual was challenging the end of employer contributions to New York’s Special Fund for Reopened Cases that was part of reforms to New York’s workers’ compensation laws made in 2013. The Fund for Reopened cases allows employees to be compensated for cases where claims were at least 7 years old and no benefits had been paid for three years. Essentially the Fund ensures that the costs of old work injuries don’t get unfairly shifted on to workers and other payors. By abolishing the employer contribution, New York state essentially stuck workers’ compensation insurers with the cost of old injuries without being compensated by employers.

Essentially the Supreme Court refused to consider overturning state-level workers’ compensation reform based on the federal constitution. I think there is some consolation in the fact that the successful challenges to workers’ compensation were made on due process and equal protection grounds, while the unsuccessful New York challenge was based on the takings and contract clause. Historically the contracts clause  was used to strike down pro-worker laws enacted by states starting in the late 19th century. (I also find some personal consolation that the successful constitutional challenges to comp reform have been mounted by plaintiff’s lawyers from small firms, while the New York challenge was unsuccessfully argued by a former United States Solicitor General.)

The demise of the Fund for Reopened Cases was prompted by an earlier reform that abolished the Second Injury Fund in New York because insurers pushed former Second Injury Fund cases into the Fund for Reopened Cases. Second Injury Funds were intended to encourage hiring of injured employees by ensuring that new employers were not stuck with the entire cost of aggravation of old injury by a previously injured worker. New York is far from the only state that has abolished second injury funds. Insurance thought-leader types seem to believe that Second Injury Funds aren’t necessary because of the Americans with Disabilities Act.  Anyone with any experience litigating ADA cases for employees would beg to differ.

Fundamentally, the failed New York and Oklahoma court challenges are illustrative of disturbing larger trends in the arena of workers’ compensation. First, constitutional challenges are not a foolproof method of defeating workers’ compensation reform. Secondly even when court challenges do succeed they represent the inverse of the conditions that made workers’ compensation laws possible. Workers’ compensation laws were enacted by legislatures in the face of a court systems that as a whole was either indifferent or hostile to the interests of workers hurt on the job. Now advocates for injured workers look to courts for relief from hostile legislatures. Looking to state appellate courts as an antidote to workers’ compensation reform may become less of an option as anti-worker Governors appoint anti-worker judges. Ensuring the workers’ compensation system protects injured workers will probably depend on the same type of mass politics that lead to the enactment of workers’ compensation laws. That kind of politics is probably beyond the scope of the relative small number of attorneys who represent injured employees, but those of who represent injured workers’ need to ally with broader worker movements and make sure that workers’ compensation is a high priority for other worker advocates.

 

 

 

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 Constitutional law, Supreme Court, Workers Compensation and tagged , , .

Compstitutional Law 101: Part 2: Will Sveen signal a move to judicially dismantle the “grand bargain”?

Posted on by

Watch out for what these three could say in Sveen v. Melin

WILG is hosting a summit on the constitutional challenges in workers’ compensation on April 18th, I won’t be able to attend, but this post and my last post are my contribution to this ongoing discussion.

Stating that “a seemingly obscure case could have far-reaching implications” is one of the most overused clichés in legal blogging and journalism.  But a case involving a dispute over the proceeds of a life insurance policy might impact the constitutional basis for workers’ compensation and other state laws protecting employees.

In March, the Supreme Court heard oral argument in Sveen v. Melin (paywall). In Sveen, a former spouse was challenging a Minnesota law automatically removing a spouse as beneficiary of an insurance policy upon divorce. The grounds for the challenge is the so-called contracts clause of the United States Constitution which prohibits states from passing laws that impair the obligation of a contract.

Pro-corporate legal commentators have long lamented the demise of the contracts clause at the expense of laws enacted by states under 10th Amendment police powers. When these pundits and academics write about a “contracts clause revival”, they are really writing about diminishing the rights of states to enact laws under their police powers.

One of the most important set of state laws enacted under police powers are workers’ compensation laws. In New York Central Railroad v. White  state workers’ compensation laws were found to be constitutionally enacted under a state’s 10th Amendment police powers.  State laws regulating workplace safety and the ability to injured employees to seek legal redress were one of the primary drivers for the broad recognition of police powers in the late 19th century. A good discussion of the background behind the expansion of state police powers is found in the 1898 Supreme Court case of Holden v. Hardy.  In short, the Supreme Court found that state workplace safety laws were a response to the new industrial economy of the late 19th century and valid exercises of state police powers.

University of Chicago Law Professor Richard Epstein argued that minimum wage laws violated the contracts clause.  It’s not much of an intellectual stretch to argue that mandatory workers’ compensation laws would violate the contracts clause using Epstein’s interpretation of the contracts clause. A gig economy employer like Uber subjected to a state workers’ compensation law might argue that they should not be subjected to such a law under the contracts clause.

On April 2nd the Supreme Court reversed 70 years of precdent in narrowly construing exceptions to the Fair Labor Standards Act in the Navarro case. Navarro will likely have the effect of pushing plaintiffs to file more wage and hour cases under state laws. A revived contracts clause could cut off or curtail opportunities for justice for victims of wage theft in state court.

A potential contracts clause revival should concern advocates for injured workers for other reasons. In recent years, attorneys for injured workers have had a fair amount of success in overturning anti-worker changes to workers’ compensation laws based on state constitutions. That avenue would likely be blocked with a full-blown contracts clause revival.

In the late 19th and early 20th century, state laws regulating workplace conditions were struck down under 14th Amendment substantive due process. But substantive due process also allows claims for a broad variety of civil rights that are disliked by judicial conservatives, so the substantive due process clause is disfavored by courts.  The contracts clause allows courts to strike down worker-friendly state laws without creating a mechanism for expanding rights for suspect classes of individuals like prisoners or victims of police brutality. In New York Central v. White, the Supreme Court considered and rejected arguments overturning workers’ compensation laws on substantive due process grounds and contracts clause grounds.

Finally, a broad interpretation of the contracts clause would allow the Supreme Court to overturn state workers’ compensation laws while still maintaining the narrowed interpretation of interstate commerce the Roberts court appear to be endorsing in NFIB v. Sebelius. As I wrote in a post last week, a narrow construction of the commerce clause could be a high hurdle in enacting worker-friendly chagnes to workers’ compensation laws on a federal level.

Sveen v. Melin will likely be decided this spring. If the Supreme Court strikes down the Minnesota law based on the contracts clause, I will be interested to read the language of the opinion. I will also be interested in reading any concurring opinions from hard core conservatives like Gorsuch, Thomas and Alito as those opinions could be a clue as to where the court could be going on contracts clause jurisprudence. It is unlikely that Sveen v. Melin will be grounds to invalidate state workers’ compensation laws. Supreme Court decisions are limited to actual cases and controversies that are presentd to them. But Sveen could be another step in undercutting New Deal and Progressive Era refroms.  The Supreme Court has been chipping away at New Deal era laws in cases like Navarro and the Tackett decision in 2015. A bad decision in Sveen might accelerate the rollback of pro-worker laws.

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 Workers Compensation and tagged , , , , , .

Will The Supreme Court’s Attack On State Courts Affect Workers’ Compensation?

Posted on by

One of the biggest and least understood developments of the current session of the Supreme Court session is how the Supreme Court has undercut the power of state courts to decide cases. This development may also impact the traditionally state law centered world of workers’ compensation.

In Bristol Meyer-Squibb v. Superior Court the Supreme Court held that non-California residents could not join a class action against Bristol Meyer-Squibb in California state court. In Tyrell v. BNSF the Supreme Court held that North Dakota residents could not sue the BNSF in Montana state court in an FELA case.

Despite Bristol-Meyer and the BNSF having a substantial number of employees and doing a substantial amount of business in California and Montana respectively, the Supreme Court held that it would violate due process to subject defendants to litigation in those states. State court litigation should be limited to states where a defendant is incorporated, where they are headquartered or where the events in the case took place..

Bristol-Meyer and Tyrell both rely on the Daimler v. Bauman case that was decided in 2014. In her dissent in Daimler, Justice Sonia Sotomayor wrote that the effect of Daimler was “to shift the risk of loss from multinational corporations to the individuals harmed by their actions.” Essentially Sotomayor believes that the rule that a corporation can be sued in any state court where they have substantial contacts has been repealed. Sotomayor was the lone dissenter in both the Tyrell and Bristol Meyers case.

The constitutional basis for limiting state court jurisdiction is the due process clause of the 14th Amendment. The use of the due process clause to weaken the ability of states to regulate corporate conduct has echoes of the so-called Lochner era where state laws that impeded on contracts were overturned unless they were based on general police powers.

So-called forum shopping gets a bad rap from tort reformers. Terms like “judicial hellhole” have coined by pro-corporate legal advocacy groups. But the ability to pick a forum to  bring a legal case is inherent in a federal system like we have in the United States. Lawyers have a duty to bring cases in a forum where they think it is most favorable to their client. Corporate and management interests also engage in forum shopping. In November business interests persuaded a business-friendly federal judge in Texas to block enforcement of the so-called blacklist rule that would have prevented employers who violated workplace safety and fairness laws from receiving federal contracts.

Workers’ compensation laws were enacted during the Lochner era and were held to be constitutional because they were enacted under state police powers under the 10th Amendment. But the mere fact that workers’ compensation laws were enacted under 10th Amendment authority of the states does not mean corporate friendly federal courts can not find a way to strip states of jurisdiction over certain workers’ compensation claims. This is particularly true for workers who may be able to claim workers’ compensation benefits in multiple states.

In Magnolia Petroleum v. Hunt, the Supreme Court ruled that an employee who was injured in Texas but lived in Louisiana could not claim workers’ compensation in his home state of Louisiana because he had already accepted benefits in Texas. The court held that the Hunt could not collect benefits in Texas because of the full faith and credit clause of the U.S. Constitution.

Justice Hugo Black’s dissent in the case that pointed out that the only reason that Hunt received workers compensation benefits in Texas was signing a form in the hospital after the accident. Black also forcibly denounced the idea that Hunt was double- collecting benefits in Texas and Louisiana for two reasons. First, Louisiana offset the benefits that Hunt received in Texas. Secondly, Black stated “the aggregate of the awards from both states, if added together, would be far less than the total loss suffered by respondent. The Texas allowance scarcely amounts to a “recovery” in the sense of giving full compensation for loss, and has been described by a Texas court to be “more in the nature of a pension than a liability for breach of contract, or damages intact.”

Black’s description of the benefits available to injured workers who could claim benefits in two states is as true as it is now as it was 73 years ago when Magnolia came out.

In Magnolia, Black also drew parallels between how the due process and full faith and credit clauses could be used to protect corporate interests.

“For more than half a century the power of the states to regulate their domestic economic affairs has been narrowly restricted by judicial interpretation of the federal Constitution. The chief weapon in the arsenal of restriction, only recently falling into disrepute because of overuse, is the due process clause. The full faith and credit clause, used today to serve the same purposes, is no better suited to control the freedom of the states.”

Three years later Magnolia was distinguished by the McCartin decision. In McCartin the Supreme Court allowed an employee to collect benefits in Wisconsin who had first collected benefits in Illinois to collect benefits in both states because unlike Texas, Illinois had no laws stating accepting workers’ compensation benefits in Illinois ruled out a claimant from receiving benefits in another state.

In 1980, the Supreme Court applied McCartin in Thomas v. Washington Gas and Light to rule that an injured employee could collect benefits in Washington D.C. and Virginia.

But the decision in Thomas was far from the enthusiastic endorsement of multi-jurisdiction workers’ compensation claims voiced by Justice Black in his dissent in Magnolia. Three concurring Justices criticized McCartin but upheld the award of benefits to Thomas based on the legal doctrine of stare decisis. Two justices, including William Rehnquist, dissented ruling that Magnolia should still govern multi-jurisdictional claims. Current Chief Justice John Roberts clerked for Rehnquist and holds a great deal of respect and affection for his former boss.

Considering how eager the majority of the Supreme Court is to limit the jurisdiction of state courts, I would be very concerned if the constitutional of multi-jurisdictional workers compensation claims were reviewed by the Roberts’ court.

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 Courts, Government, Workers' Compensation and tagged , , , , , , , , , , , .