Tag Archives: unions

Counter-point: It’s about time unions had a “moment”

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A good union can shut down a lot of standard tricks from insurers/claims administrators/self-insureds in workers’ compensation claims

My fellow workplace law blogger, Cleveland-based management-side attorney-blogger Jon Hyman, has been raising the alarm about resurgent unionization drives in the wake of union victories at Amazon and Starbucks. His message to employers is that unions, long thought dead, are making a comeback.

One Jon’s fear and nightmare is another Jon’s hope and dream. In my 17 years of experience of representing employees in workers’ compensation and employment law cases, I can say it’s about time unions had a moment.

This is particularly true if an employee gets hurt on the job. Here are the major advantages of working union versus working non-union when you get hurt at work.

Job Security

Most union contracts require that an employer proves just or good cause to fire an employee. In practice this means proving some willful misconduct weighed against an employee’s work history and other mitigating factors. If and when push comes to shove, an employee has a good chance of overturning a termination in an arbitration proceeding.

In contrast,  a non-union or at-will employee can be fired at any time. Sure most states, including Nebraska, have laws against workers’ compensation retaliation. But are those laws effective? A study by the Texas Department of Insurance questions the effectiveness of those laws. They reported 52 percent of injured workers were fired more than six months after being hurt on the job.

I’m not surprised as there are all sorts of pro-management tricks and traps in retaliation cases. For example, courts are reluctant to find protected activity, but even if they do they are raising the burden of proof for causation. There are also judge-made rules like the managers rule that disqualify certain employees from claiming retaliation and the good old-fashioned “honest belief” rule that often leads courts to discount false reasons for employment decisions.

Of course an employee also has the burden of proof in a civil case against their employer, so employees are a playing field tilted toward the employer. A lot of judicial precedent just pours grease on that uphill climb.

Job Security, Part 2: Extended leave and employee-friendly return to work programs.

Union contracts typically give employees protections above and beyond what is afforded to at-will or non-union employees.

One reason many injured workers lose their jobs is that their recovery takes longer than the mandated 12 weeks of protected leave under the Family Medical Leave Act. (This is particularly true if employers/insurers drag their feet on approving medical care) Further, even if an employer and employee go through a good faith interactive process to accommodate a medical condition as required by the Americans with Disabilities Act (and that’s a big if) the employee isn’t guaranteed a job.

Union contracts often address these concerns through extended leave provisions, negotiating return to work and light duty issues and giving employees seniority rights that allow them to bid into easier jobs. Unions can also build solidarity among co-workers which makes it easier for workers to informally accommodate disabilities among themselves rather than engaging in paper-heavy and adversarial process with human resources and/or occupational health.

Good union v. meh union when it comes to workers comp.

I just read over a union contract on workers’ compensation and return to work for a client. Like 1980s NBA action, it is fantastic. Not only do they negotiate return to work and light duty, they bargain for the employer to cooperate in the claim and to not interfere or retaliate for members who get hurt on the job. Further they place some limits on the company contacting their members. In other words, if a company engages in a lot of standard insurance company/claims administrator/self-insured shenanigans, the company could be looking at arbitration.

Some unions punt on workers’ compensation under the theory that since they don’t negotiate for workers’ compensation, they will leave it to the company. I don’t like that philosophy. But even in a union where the union takes a hands-off position towards workers’ compensation, the employee still has more job security and better benefits.

Good insurance benefits for denied workers’ compensation cases

Insurers and claims administrators like denying workers’ compensations cases on questionable circumstances. This is particularly true in states like Nebraska where employees can’t sue their workers’ compensation insurer for bad faith. If an employee doesn’t have health insurance, then they will often have a hard time getting the medical evidence they need to prove up their workers’ compensation case by going to the doctor.

But union employers tend to have good health insurance that allows employees to get the medical treatment they need for their health and for their disputed workers’ compensation cases.  Sometimes employees can also collect private disability. Sure health insurance and disability liens can create hassles in resolving a workers’ compensation case, but getting health care and income far outweighs any inconvenience caused by dealing with potential liens at the end of a case.

Do non-union employers have similar benefits. Sometimes yes, but why do they have these types of benefits? Often times its to offer benefits similar to unionized plants. I see this frequently in meat packing in Nebraska. I litigate frequently against beef processing plants owned by Tyson in Lexington, Nebraska, Cargill in Schuyler and JBS in Grand Island. JBS and Cargill are union, Tyson isn’t. But Tyson’s benefits and even some of their leave policies are similar to the unionized plants. Tyson has to keep up with JBS and Cargill.

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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What protections will pork plant workers have after the USDA allows faster line speeds?

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The United States Department of Agriculture (USDA) announced  it would allow pork processors like Tyson, Smithfield and Hormel, to speed up production. Worker safety advocates rightly pointed out that faster production line speeds lead to more injuries for meatpacking workers.

Fortunately, the USDA is not the last word on regulating working conditions in meatpacking.

Workers’ Compensation laws

State workers compensation laws make employers bear the costs of work injuries. In Nebraska a packinghouse worker need only show working conditions contributed to their work injury. Nebraska also compensates multi-member injuries based on how the injury impacts a worker’s ability to earn a living in many circumstances. This way of compensating an injury can take into account ability to understand English and size of job market in compensating a work injury. This means meatpacking workers, particularly immigrant workers, exposed to higher line speeds in Nebraska have the opportunity for fair compensation.

Nebraska also enacted a Meatpacking Workers’ Bill of Rights in 2000 to some fanfare. In my experience that law is mostly symbolic. I believe the amendments to  Neb. Rev. Stat. 48-121(3), enacted in 2007 which expanded the coverage for multi-member LOEP injuries is substantively more important for meatpacking workers than the meatpacking bill of rigthts.

But workers compensation laws can vary greatly by state. The same packinghouse worker in Kansas would have a more difficult time being compensated fairly for injuries caused by faster line speeds because of major differences between Nebraska and Kansas workers’ compensation law. Kansas workers can only collect workers compensation if they prove their work is a prevailing factor in causing their injury. This is a much tougher standard than the contributing factor required in Nebraska.

Unions

Unions are another factor that can help remedy the effects of faster line speeds in pork plants.  Meatpacking workers are about eight times more likely to be unionized than the typical private sector employee. In Nebraska, two major pork plants, Smithfield in Crete and Hormel in Fremont are unionized. But not all plants are unionized and union plants may feel pressured to compete with non-union plants regarding line speed.

OSHA

Meatpackers have pointed out that United States Department of Labor/Occupational Safety Health Administration (DOL/OSHA) is still regulating workplace safety. They have also pointed out that the Obama USDA moved to increase line speed in poultry production in 2014.

It is true the Obama USDA approved faster line speeds for poultry workers, but the Obama DOL was relatively aggressive in protecting poultry workers. The Trump DOL has been less aggressive in enforcing workplace safety rules. I would imagine they will become even less aggressive now that Eugene Scalia has been confirmed as Secretary of Labor.

Scalia, the son of the late Supreme Court Justice, argued against an OSHA ergonomics rule proposed by the Clinton administration which likely would have prevented many overuse injuries. The younger Scalia’s bid for Labor Secretary was supported by high profile legal scholar and Obama regulatory czar Cass Sunstein. Sunstein’s support of Scalia shows the DC legal establishment is ambiguous at best, hostile at worst to federal regulation of workplace safety.

If Donald Trump wins a second term, the DOL will likely turn a blind eye to the occupational effects of faster line speeds signed off on by the USDA. If the Democrats take over in 2021, it’s harder to know what will happen.

Some pundits think a Democratic president would be more aggressive in defending labor and employment rights. Steven Greenhouse seems to be particularly optimistic about the plans of the major Democratic candidates. I would note that Greenhouse doesn’t seem to have factored in workplace safety issues in his grades of the candidates.  I don’t want to delve too deeply into the Democratic presidential primary right now. I hope any future Democratic administration has a better record on workplace safety than the Obama administration did.

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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