Category Archives: employment law

Trump’s Assault on Workers

As a workers’ compensation attorney, I tend to view current events through the prism of their effect on workers and more specifically injured workers.  The Trump Administration has rolled back his predecessor’s strides in environment, labor and finance, civil rights, health care, government reform, immigration, and education.  I would like to specifically address reverses in worker and consumer safety.  The Washington Post updated how Trump is rolling back Obama’s legacy through 16 executive actions, 74 cabinet level agency decisions, 14 congressional review acts, and a piece of new legislation. 

  • Specifically, in terms of worker and consumer safety, the Mine Safety and Health Administration is revising a mining inspection rule published three days after Obama left office by allowing examiners to do their reviews while miners are working letting companies not record hazardous conditions if they are immediately corrected.
  • The Trump Administration Interior Department ordered the National Academy of Sciences, Engineering and Medicine to stop a study of health risks for residents near surface mining operations in the Appalachians.
  • The EPA delayed implementing a rule that would have changed how agricultural workers are protected from pesticides.
  • The EPA is delaying implementation of rule to require manufacturers to label formaldehyde and composite wood products.
  • A Coast Guard plan to regulate firefighting systems on tanker ships and helipads on offshore platforms was withdrawn.
  • Additionally, a Coast Guard rule that would have required all ships and berths to maintain equipment and technical systems for safety was withdrawn.
  • OSHA delayed implementing a rule regulating construction worker exposure to silica (linked to lung disease and cancer).
  • The House and Senate passed a bill signed by President Trump eliminating worker safety regulations aiming to track and reduce workplace injuries and death.
  • The Labor Department removed from its agenda a proposal to stiffen exposure standards for chemical solvents.
  • The Labor Department cancelled plans to lower permissible exposure limits for some substances that had been set in 1971 and cancelled plans to revoke obsolete permissible exposure limits for other substances.
  • The Labor Department removed from its agenda a proposal to tighten exposure standards for styrene, a chemical used in plastics identified as a carcinogen.

This laundry list of anti-worker executive actions, Cabinet-level agency decisions and Congressional review acts reveals the hypocrisy of Trump’s campaign promises to help working families.  Rather, it reveals his completely anti-worker policy.

Am I Being Paid Enough?

Injured workers commonly ask whether they are being paid the correct amount of workers’ compensation benefits.  The question usually pertains to the weekly lost time benefits paid during while healing after an injury.  It is a question I take seriously as the weekly benefit is crucial to the injured worker and their family.  This blog post outlines how the weekly benefits are calculated.  If an injured worker has questions about benefits, they should reach out to an experienced workers’ compensation attorney. 

The starting point for calculations is the worker’s Average Weekly Wage. Specifically, when an injured worker is under restrictions by a treating physician following an injury and the employer cannot provide work, or when the injured worker is taken off work completely by a physician, the insurance company owes “temporary total disability” (also referred to as “TTD”).  Temporary total disability is paid at 2/3 of the injured worker’s “average weekly wage” (also referred to as “AWW”). 

For most workers, the average weekly wage is calculated in two ways under Wisconsin law, and the injured worker is entitled to the higher of the two calculations: 

  1. Hourly Rate x 40:

    The first option is the employee’s hourly wage at the time of the injury multiplied by the hours regularly scheduled to work (usually, full-time, or 40 hrs/week).  For example, an employee making $10 an hour, who usually works 40 hours a week, has an average weekly wage of $400 ($10 x 40).

    There are additional considerations for this equation.  For example, shift differentials (especially important to those in the medical field) should be considered as should overtime if the injured worker was regularly scheduled to work overtime hours.  Also, if the employee works alternating shifts from week to week, this needs to be taken into account.  If any of these apply, it is a good idea to reach out to an attorney to discuss whether the amount being paid is correct.  In my experience, insurance companies will ignore overtime payments and shift differentials when calculating the average weekly wage, which reduces the amount owed to the injured worker.

  2. Average Earning in the Year Before the Injury.

    The second option is the actual gross earnings during the 52 weeks before the injury divided by the number of weeks worked during that period.  For example, if an employee earned $52,000 in the 52 weeks before the work injury, their average weekly wage is $1,000.  The number of weeks worked includes any weeks the employee was being paid, including paid vacation or paid sick leave.

    In addition, all taxable earnings must be included when calculating the gross earnings, including overtime, incentive pay, profit sharing, and bonuses.  Other things of value, including meals, rooms, utilities, rent remission, may also be part of the gross earnings.

The injured worker receives the higher of the two calculations.  The AWW is an essential to a claim–affecting all other workers’ compensation benefits.  An injured worker should ensure they are paid the correct amount.  The Worker’s Compensation Act is designed to protect the worker and provide these wage loss benefits.  If you are injured and question the amount paid, contact an attorney.

What Do You Mean, I Can’t Sue My Employer?

OSHA find the owner of the Didion Milling Plant in connection with an explosion that killed 2 workers and injured several more.

I sat down this morning with a television reporter interviewing me about a horrific explosion in Wisconsin that killed 5 workers and injured many more.  The explosion on May 31, 2017 at the Didion Ethanol Plant in Cambria, Wisconsin occurred when corn dust exploded, destroying the entire plant.  OSHA hit the company with a $1.8 million fine, calling it a preventable explosion.

The reporter’s question to me was “Why can’t the employees sue their employer?”  The answer goes back over 100 years in Wisconsin to the “Grand Bargain” that was struck between management and labor.  Sometimes referred to as the “great tradeoff,” employees traded away their right to sue their employer, even for egregious safety violations, in return for wage loss and medical benefits to be paid regardless of fault.  The goal was to relieve the injured employee from the burden of paying for medical care and replace lost wages.  At the turn of the 20th Century, Wisconsin workplaces were often dangerous places, and employers had little incentive to make them safer.  Injured workers could rarely afford the kind of legal cost for recovery efforts in court and employers benefitted by use of contributory negligence, assumption of risk and co-employee negligence as bars to an employee’s recovery in court.

The administrative system that was established by worker’s compensation was created to provide a direct remedy to the employer and to limit (by Exclusive Remedy) litigation against the employer.  The system was supposed to insure a method of providing benefits to an injured employee during the period of disability and to ensure the employees were not reduced to poverty because of injuries.

Speed, dependability, and financial assistance were components of the new system, and by making employers responsible for injury, the law offered strong incentives to make workplaces safer.  Unfortunately, that has not occurred.  The latest statistics indicate that over 100 people die annually in Wisconsin and over 5,000 annually across the nation.

Revealing to a grieving widow that the remedy available is limited to four times the deceased worker’s annual income is precious little consolation for loss of a spouse’s life and lifetime income.

Gorsuch, Chevron and Workplace Law

Judge Gorsuch

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

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

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

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

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

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

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

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

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

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

Are You Misclassifying Your Workers and Committing A Fraud?

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

To avoid misclassifying your workers follow these tips:

  • Don’t make assumptions. If you are a business owner you should consult a tax professional and an attorney to ensure you are complying with IRS and labor laws when hiring staff or contractors.
  • If contracting with staffing companies or labor brokers, make sure those agencies are properly classifying its workers as employees. Companies can be held responsible for labor violations of their contractors.
  • Consider filing a SS-8 Form (Determination of Worker Status) with the IRS and ask that agency to determine whether the worker is an employee or independent contractor.
  • Be aware that contractors set their own schedules and pricing, and perform the work as they see fit. If you want control over these areas, make sure you hire an employee.
  • Check the workers’ compensation policies of any subcontractor you hire. (Look out for “ghost policies,” which aren’t designed to cover known employees.)
  • Don’t rely on excuses such as “He only works a few days a week.” “She agreed to be an independent contractor.” “They use their own tools.” “He’s done this for so long he doesn’t need my supervision.”

Thanks to McClatchy DC!


“No Tengo Documentos”: Undocumented Workers’ Compensation

Representing injured workers in Wisconsin is a challenge; representing undocumented workers presents some additional obstacles. 

Many undocumented workers toil in extremely hazardous jobs resulting in injuries. While federal law clearly bars their employment, the real world practice of hiring undocumented workers is undeniable. The U. S. Immigration and Naturalization Services and the Immigration Reform and Control Act (IRCA) have made it illegal for employers to knowingly employ undocumented workers. 

Employers have attempted to use the IRCA as a defense to deny payment to injured workers by stating they would rehire the employee were it not illegal to do so. The Wisconsin Worker’s Compensation Act contains no provision for terminating disability compensation where an employee is terminated, so long as the employee is still temporarily disabled. The Commission has so indicated (see Arista-Reav Kenosha Beef, 1999 WL 370027, LIRC May 5, 1999).  The Commission has routinely rejected employer claims that undocumented workers occupy a different position under workers’ compensation because they are legally precluded from obtaining other employment until they resolve their immigration status.

Employers may still argue that certain benefits are not available given the circumstances of each case. For example, federal law requires valid citizenship to qualify for vocational rehabilitation benefits, so vocational rehabilitation (school retraining) would not be available to an illegal immigrant whose permanent restrictions cannot be accommodated by the employer due to illegal status. Denying an injured illegal immigrant Loss of Earning Capacity benefits on the notion that “but for” the illegal status, the employer could accommodate permanent restrictions is a trickier question. The Commission recently ruled in Zaldivar v. Hallmark Drywall, Claim No. 2014-WL-5350849 (Sept. 30, 2014) that an undocumented worker does in fact have a Loss of Earning Capacity and that one factor in determining that loss would be his illegal status.

Other states have wrestled with the same issue and come up with a similar result. In Iowa the Supreme Court held that an undocumented worker was indeed an employee potentially entitled to benefits. Staff Management v Jimenez, 839 N.W. 2d, 640 (Iowa 2013). The Iowa Court said the purpose of IRCA was to inhibit employment of undocumented workers, not to diminish labor protections (such as workers’ compensation) for undocumented workers. Tennessee held that an undocumented worker was an employee and had the same rights under workers’ compensation that all other employees had.  (See Torres v. Precision Ind, Inc. Tennessee Court of Appeals Aug 5, 2014). A similar result was reached in Wyoming (Herrera v. Phillips, 334 p. 3rd 1225 (Wyo. 2014), where, after an injury, the employer asked the worker: “You’re illegal, aren’t you?”.  The Pennsylvania Supreme Court reflects the rule in most states that an undocumented worker is an employee but once the employee recovers so that they can pursue some level of work, the disability benefits may be suspended.  Reinforced Earth v. W.C.A.B., 810A. 2d 1999 PA 2002.

Representing undocumented workers continues to pose challenges, but the courts have recognized their right to compensation for work injuries.

Retaliation / Refusal to Rehire in Worker’s Compensation

If an employer terminates an employee because of a work injury, or unreasonably refuses to rehire the employee after a compensable work injury, a penalty of up to one year’s lost wages applies. The purpose of Wisconsin’s statute is to prevent discrimination against employees who previously sustained injuries and if there are positions available within the injured employee’s restrictions, to assure the injured person goes back to work with his former employer.

This statutory protection is an exception to the general rule of “at will” employment in Wisconsin – where an employer can hire, fire, and make employment decisions for any reason or no reason at all, except for a discriminatory reason defined by law such as race, gender or religion. Under the Wisconsin Worker’s Compensation Law §102.35(3) a work injury is essentially an additional protected category. In a Refusal to Rehire case, the worker need not prove the reason for discharge in order to make a claim. In fact, the worker satisfies his burden of proof by showing he was an employee with a compensable injury who was subsequently denied rehire. Once established, the burden shifts to the employer to show reasonable cause for not rehiring the applicant. (Other States have similar provisions. See, for example, Ohio Code 4123.90 with similar anti-retaliation provisions.) The burden-shifting model recognizes the realities of the employment relationship and disparate access to information. The employee generally has limited means to prove the “real reason” for his discharge, so the burden is on the employer to establish good cause when the burden shifts.

Health Care Testing: A New Frontier for Worker’s Comp

As a worker’s compensation lawyer, I see many news stories through the prism of how the news event or trend will affect injured workers in the worker’s compensation system. A federal judge in Minnesota has ruled that Honeywell, Inc. can begin penalizing workers who refuse to take medical or biometric tests. 

The EEOC had claimed Honeywell’s policy violated the Americans With Disabilities Act and the Genetic Information Nondiscrimination Act. They filed a lawsuit in Minneapolis on behalf of two Minnesota employees of Honeywell.

The tests Honeywell required their employees to take measured blood pressure, cholesterol, and glucose, as well as signs that employee had been smoking. Employees who declined to take the test could be fined up to $4,000 in surcharges and increased health costs. Honeywell said the program is designed to “encourage employees to live healthier lifestyles and to lower health care costs.” Honeywell says the testing promotes employee well-being. Management also indicated “We don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.”

The ramifications of such testing for worker’s compensation immediately come to mind. In any kind of an occupational exposure claim, such tests could be used to help deny worker’s compensation claims for employees who smoke, are overweight, have diabetic condition, claims involving occupational back conditions, carpal tunnel claims, and any kind of respiratory complaints. Another “slippery slope” may be the use of these kinds of testing to actually screen prospective employees, since the employer rationale would be that hiring folks with those pre-existing conditions would cost the employer more money.