February 21, 2012

Wall Street can invest in Saudi Arabia, Somali packinghouse workers can’t send money home

I represent many Somali immigrants who work in meatpacking plants across Nebraska. According to the BBC, Somalis in the United States sent $100m back to Somalia in 2011. However this lifeline has been blocked because U.S. banks are afraid they will be prosecuted for sending money to Somalia because it could end up supporting  Al-Shabaab, the Somali offshoot of al-Qaeda.

The BBC reported that two Somali immigrants in Minneapolis were convicted of sending $8600 to al-Shabaab. Despite concerns over al-Shabaab receiving financial support from the United States, American intelligence officials concede that the vast majority of remittances sent by Somali immigrants to Somali nationals are for legitimate purposes.  Critics of U.S. policy argue that preventing legitimate money transfers from the United States to Somalia will do little to keep money from the U.S. from getting to al-Shabaab.

Stopping legitimate money transfers from Somalia to the U.S. is also hypocritical.  It is no secret that Saudi oil money supports terrorism.  A decade after 9/11, Saudi money is still funding terrorism. However in 2009, according to the Office of the United States Trade Representative, American companies and investors invested $8.1 billion in Saudi Arabia. Some of that money probably went to terrorists. However neither Republicans or Democrats are  going to let that inconvenient fact stop the Wall Street types who largely fund their campaigns from maximizing  their profits by investing in Saudi oil. In contrast, you would be hard-pressed to find a Somali packinghouse worker among the ranks of Super PAC funders or bundlers

In a separate article the BBC pointed out that Somalia’s private sector is doing well considering the chaotic political conditions in the country. Part of the reason for the success of Somalia’s private sector is the remittances send back by Somali immigrants — including the ones working in packing plants in Nebraska. On Thursday a major conference will convene in London on the future of Somalia.  I hope conference attendees will realize the contribution made to future of Somalia made by Somali immigrants working in packinghouses in Nebraska and the rest of the United States who send their hard earned dollars back to their home country.

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February 16, 2012

Federal oversight of collection, credit agencies could benefit civil plaintiffs

Consumer Financial Protection Bureau (CFPB) director Richard Cordray announced today that collection agencies could  be subject to federal oversight by the newly-created bureau. This is good news for people who have lost their jobs because of a personal injury, a work injury and/or a wrongful termination.  Loss of a job goes hand in hand with financial insecurity and mental and emotional distress. Any new federal regulations could give victims of injuries and wrongful terminations a bit more piece of mind if their attorneys are diligent in applying the potential new regulations.

One pro-debtor idea that has been discussed as a regulation would be heightened documentation standards for filing collections suits.  This would be a preemption argument. The Roberts Court and the Federal Courts generally favor preemption. Plaintiffs lawyers, especially the class action bar, hates preemption. I think most plaintiff’s lawyers would be wary of federal intervention in state courts. But if the Supreme Court favors preemption it makes sense for attorneys who advocate for debtors to use whatever tools are available.

According to the New York Times article, the oversight will cover the 150 biggest collection firms that comprise about 2/3rds of the market share of the collections industry. But even if an over-aggressive collection agency is not covered by the new regulations, Nebraska lawyers defending collection cases for plaintiff’s in injury and employment cases have other remedies such as the option of removing collection actions from county court into district court in order to seek injunctive relief. Lawyers in other states should also check their jurisdictional statutes to see how they can use equitable remedies in collection defense.

The CFPB also announced a proposal of credit reporting agencies. I heard a speaker at the recent AAJ Winter Convention in Phoenix mention that insurers will run credit checks of plaintiff’s firms during litigation in order to gain more leverage in settlement negotiations. If that is true it would stand to reason that insurers and employers would run credit checks on the plaintiffs themselves.  Such a tactic would likely run afoul of the Fair Credit Reporting Act and possibly create another cause of action. One practice pointer to counter such tactics would be to include questions about credit checks in written discovery.

February 2, 2012

8th Cir. upholds $53K sanction for plaintiff’s failure to cooperate with discovery

The Eight Circuit Court of Appeals upheld a sanction of $53,255.55 in costs and attorneys fees plus dismissal for a plaintiff failure to answer basic discovery requests after failing to comply with multiple court orders.

This was a case from hell. The plaintiff was suing for the defendant for a wrongful discharge case. Defendant filed a motion to compel discovery answers 10 months after plaintiff filed the complaint. Defendant was seeking information about plaintiff’s income and medical history to assess plaintiff’s damages. The court sustained defendant’s motion to compel, but plaintiff failed to provide adequate answers. Two hearings later and six weeks after the original deadline on the motion to compel, the court sanctioned the plaintiff $3000 for defendant’s attorneys fees for bringing the motions to compel.  After being financially sanctioned the first time, the plaintiff continued his failure to cooperate with discovery leading to the $53,000 sanction and dismissal of his case.

This case is an outlier, but it provides valuable lessons for lawyers who represent employees in the 8th Circuit. The first lesson is that judges will financially penalize your client severely if they do not comply with reasonable discovery requests. I’d share this decision with any client who was less than cooperative with reasonable discovery requests.

The second lesson is if your client is being sanctioned for failing to comply with a reasonable motion to compel, you need to find a way to withdraw. In Nebraska, Rule 3-501.16 of the Rules of Professional Conduct would probably allow a lawyer to withdraw in this situation for the reasons that the client failed substantially comply with an obligation to the lawyer regarding the lawyers services and that representation of the client has been made unreasonably difficult for the client. The comment to the rule states that the attorney needs to warn the client that failure to cooperate will lead the lawyer to withdraw and could also lead to the possibility the client having to represent themselves in their case.  Another practice pointer for trial lawyers is to make cooperation with reasonable discovery requests part of the fee agreement.

The bottom line is that it’s a waste of everyone’s time to bring a suit for a client who won’t cooperate in the process.  Cut your losses and get rid of troublemakers because as plaintiff’s lawyers we need to spend time on deserving clients, spend time serving our community and enjoying time with our family and friends.

January 25, 2012

County judge orders work comp collections case removed to District Court

This afternoon a County Court judge sustained my motion to transfer a collections case from a workers comp related medical bill to District Court in order for me to ask for injunctive relief. You can read the reasoning behind my motion and why it helps debtors by reading my post from yesterday. In short,  District and County Court’s have concurrent jurisdiction in civil cases under $45,000 in Nebraska. County courts do not have general equitable jurisdiction but District Courts do.  In a previous hearing, the County Court determined I didn’t have a statutory or case law basis to dispute the right for a provider to collect on medical bills in a disputed workers compensation case.  Since I had no legal remedy, I asked for the right to transfer to District Court to pursue an injunction against collecting the unpaid medical bill.  Since equitable relief is not available in County Court, the court has no choice but to remove the case to District Court under Neb. Rev. Stat. 25-2706. I also argued that denying my client the chance to pursue available equitable relief would be a due process violation. In granting the motion, the Judge commented that moving the case to District Court would not prejudice the creditor because they still had the right to a trial in District Court.

The threat of injunctive relief in a work comp related collections case gives injured workers more leverage in their negotiations with bill collectors. Hopefully more advocates for injured workers will use this tool to protect their clients.

January 24, 2012

Equitable relief is a powerful tool to defend work comp-related collections cases

An on-going hassle for injured workers and their attorneys is what to do when medical providers attempt to collect bills for services that are denied by the workers compensation insurer. Iowa has a statute preventing collection of unpaid medical bills during the pendency of a workers compensation case. Nebraska does not have such a statute. However injured workers and their attorneys have the option of asking for equitable relief in the form of an injunction on collection of bills they claim are related to their workers compensation court. This article will show you the simple steps of how to make your case for equitable relief.

Jurisdiction

Most collections cases related to unpaid medical bills are filed in County Court in Nebraska.  However, County Courts can not grant injunctions because they do not have general equitable jurisdiction possessed by the District Courts.  Iodence v. Potmesil, 239 Neb. 387, 476 N.W.2d 554 (1991) However the District Court and County Court have concurrent original jurisdiction in civil matter under $45,000. Neb. Rev. Stat. §24-517.   The County Court is supposed to transfer a case to the District Court when the relief requested is exclusively within the jurisdiction of the District Court. Neb. Rev. Stat. §25-2706.  In my view not granting a motion to transfer would be an abuse of discretion by the County Court. No person shall be deprived of life, liberty, or property, without due process of law, nor be denied equal protection of the laws. Neb. Rev. Stat. CONST. Art. I, § 3: See also U.S.C.A. Amd. V.  The essence of procedural due process is simply that fundamental fairness which a person has the right to expect-even demand-and receive through our system of law.  Appeal of Levos, 214 Neb. 507, 515, 335 N.W.2d 262, 267 (1983) My opinion is that if equitable relief is available to the defendant in a collections case, it is unconstitutional to deny that defendant the right to ask for equitable relief by denying a motion to transfer to District Court. Essentially the court would be asking the defendant to fight the collections case with one hand behind their back.

Building your equitable case

I think the following facts would lead to a District Court granting injunctive relief in a collections case related to a workers compensation injury.

1. Strong evidence of the unpaid bills being reasonable and necessary because of the work injury. This evidence would come in the form of a causation opinion and an order from treatment from a doctor. Evidence of medical causation allows you to argue that the medical provider has a reasonable expectation of payment.

2. Evidence of payments by private health insurance.  This is important because it shows that the medical provider has paid something for their services.

3. If the worker has no private insurance, present evidence that your workers is willing and able to make installment payments. Even better evidence would be evidence from other medical providers showing they were willing to accept small installment payments.

Another argument to make in an equitable case is to bring up the fact that if your client was on Medicaid and the provider accepted Medicaid, that the provider would be paid pennies on the dollar and would be forced to write off the balance. How fair would it be for someone who paid $.60 on the dollar through their private insurance for services to face a judgment while the person who paid $.20 on the dollar through Medicaid had their balance wrote off.?

Interaction between Law and Equity

Many workers compensation lawyers in Nebraska defend collections suits by arguing that Neb. Rev.  Stat.  §48-120 precludes collections for workers compensation bills as a matter of law. I’ve made that argument, but judges seem to agree with collections attorneys when they argue that 48-120 doesn’t apply because if a claim is denied there is probably a factual reason. I’m not going to get into a detailed analysis of the merits of this argument. I think the best approach to defend collections claims stemming from workers compensation accidents claims is to file a legal motion to dismiss paired with a motion to transfer to District Court to ask for equitable relief if the motion to dismiss as a matter of law is overruled. 

 

January 20, 2012

Can you be fired for something your spouse says on Facebook?

Some married couples have joint Facebook accounts  for example “JackandJill Jones”. However people should be aware what a spouse posts under a dual account can lead to a lawful termination of the other spouse. Here is a scenario from a person who called in yesterday.

A woman was fired from a professional job for comments made by her husband on their dual Facebook account. Without getting into details, the post by the husband had 1) nothing to do with the terms and conditions of his wife’s employment 2) was on a topic of no public concern and 3) was related to a post that was demeaning to women and encouraging behavior that can be best described as immature.

Someone with a grudge against the husband and wife, told the wife’s boss about the post and how it didn’t make her employer look good to have one of their professional employees making such comments. The person who tattled to the wife’s employer had a grudge not related to the wife’s employment. The wife’s employer agreed the Facebook posts made by the husband under the dual account were unprofessional and forced the wife to resign. The wife was an at-will employee.

Besides filing for unemployment, my advice to the woman as that there was nothing to she could do under Nebraska law. The posts created a legitimate business reason to terminate her employment.  The lesson here is that joint Facebook accounts can create serious problems.

January 10, 2012

8th Circuit upholds enforcement of arbitration award favoring worker in return to work grievance

Evidence of uneven application of a return to work policy lead the 8th Circuit to uphold enforcement of a  Missouri court’s  enforcement of an arbitration award forcing an employer to pay for a Functional Capacity Examination for a union employee with conflicting work restrictions.

The worker returned to work from a back injury with his family doctor returning him to work with no restrictions. Employees were required to take a functional capacity exam to determine whether they could meet the physical requirement of the job as a ready-mix cement truck driver. The worker in this case failed the functional capacity test and was sent to a neurosurgeon who opined that the worker was able to safely lift 40 pounds, while the requirement for the job was lifting 60 pounds.  About a month later, the employee re-submitted his family doctor’s opinion stating he had no restrictions. The employer then required the employee to have an independent medical examination. That doctor opined plaintiff could lift 45 pounds, which would disqualify him from working as a ready-mix concrete truck driver. The union filed a grievance to force the employer to pay for a second FCE.

However, the arbitrator was persuaded by the fact that two other workers were allowed to return to work after re-taking failed FCEs. The employer tried to distinguish those employees by stating they did not have doctors notes stating they had medical restrictions. The arbitrator was not persuaded by that argument and the 8th Circuit deferred to the arbitrator because the employer conceded that any work or safety rule they made had to be reasonable. The 8th Circuit applied the proposition that when work and safety rules made by an employer have to be reasonable, the application of those rules is a question of reasonableness. Because the arbitrator was applying a reasonableness standard, the arbitrator was acting within the essence of the collective bargaining agreement and the court could not review the merits of the arbitrator’s decision.

This case holds many lessons. Among them:

1.) Employers almost always have the right in collective bargaining agreements to make work and safety rules. Unions need to make sure it is spelled out that those rules must be reasonable. An employer may not concede to that fact like this employer did. Plus the arbitrator may not make reasonableness an implied term of the collective bargaining agreement. Barring explicit language on a reasonableness, a concession by the employer or the arbitrator making a reasonableness an implied term, the 8th Circuit could be reluctant to defer to the arbitrator’s decision on the merits of a case.

2.) Physical restrictions are imprecise. Doctors can be all over the place, which just re-enforces the importance of listening to a workers version of their restrictions and trying to work within those restrictions and the doctor-given restrictions.

3.) Accommodation of a disability or perceived disability is all about a fair process. In an unionized workplace, that process will likely be more burdensome on the employer depending on the terms of the collective bargaining agreement.

4) Employers need to equally apply policies to similarly situated employees and not split hairs over what constitutes a similarly situated employee.

December 26, 2011

More lessons learned about work comp and the ADAAA.

I recently took a doctor’s deposition in an ADAAA failure to accommodate claim stemming from a workers’ compensation injury. I gleaned two insights from the deposition that can benefit anyone who spends time at the intersection of employment and workers compensation law.

1. Many doctors like nurse case managers: Plaintiff’s lawyers are rightfully skeptical of the role that nurse case managers play in the workers compensation system. However many doctors  find the nurse case manager useful because doctor’s believe that nurse case manager is a fellow medical professional who understands the requirements of the employer’s workplace. Many doctors are uncertain about giving functional limitations for an injured workers and a nurse case manager can make it easier for a doctor to believe that they can safely return a patient to work. Plaintiff’s lawyers should craft questionnaires to doctors and frame their discovery of doctors with an understanding that many doctors view the nurse case manager as a partner rather than an adversary.

2. Employers should look at the medical dictation in addition to a return to work note in making a decision on placing an injured worker back in the workplace. The fact is that injured workers feel pressure from the employers, family and self to return to work before they are ready. Sometimes doctors will accommodate those requests with a full release to work in the form of a return to work note.  However a review of what the doctor dictated or wrote down during their examination of the injured worker will  sometimes show that the worker who has “no restrictions.” is not fully recovered from their injury.  If an employer assigns an employee a job that they can’t do and there is medical evidence showing that the employee can’t reasonably do that job, the employee has a strong argument that the employer did not make a reasonable accommodation of their disability.

November 8, 2011

Neb. Court of Appeals upholds just cause for terminating mental hospital worker who smoked pot before shift

The Nebraska Court of Appeals upheld a finding that the state of Nebraska had just cause  for firing  a mental health worker who worked in a locked ward with sex offenders who admitted to smoking marijuana before his shift.

Facts:

A member of the Nebraska State Patrol smelled freshly smoked marijuana on the plaintiff and reported this to plaintiff’s supervisor at the Lincoln Regional Center. Defendant’s testified and plaintiff confirmed that he admitted to smoking marijuana about 2 1/2 hours before his shift. Plaintiff refused to take a drug test because he stated it was unnecessary because he admitted to smoking marijuana. Plaintiff was suspended and then terminated for breaking rules related to him smoking marijuana and refusing a drug test. Plaintiff had never been disciplined in 28 years of service at LRC, but had received less than favorable performance reviews because of attendance issues. Two co-workers testified to plaintiff’s good performance and his professionalism. However plaintiff admitted that he needed to model positive behavior for patients and that smelling of marijuana was not a positive behavior — especially for patients who suffered from addiction problems.  Plaintiff also admitted that drug use impaired awareness and that awareness was important in his locked ward because of the potential danger presented by the patients. The case wound its way through the administrative appeals process up to the District Court where the District Court found the State of Nebraska had good cause to terminate plaintiff. Plaintiff argued that the discipline was too harsh and appealed.

Law

Nebraska law defines just cause  as what “a reasonable employer, acting in good faith, would regard as good and sufficient reason for terminating the services of an employee as distinguished from an arbitrary whim or caprices. Ahmann v. Nebraska Dept. of Corr.  Servs., 278 Neb. 29, 767 N.W. 2d 104 (2009) The plaintiff based his argument off of a term in the collective bargaining agreement stating the employer would use progressive discipline in terminating plaintiff. However this use of progressive discipline was premised on the severity of the infraction along with the history of discipline and history in the file.  The court found that smelling off and being under the influence of marijuana in a locked psych ward was severe enough to skip progressive discipline. The court cited the case of Nebraska Dept. of Correctional Servs. v. Hansen, 238 Neb 233, 470 N.W. 170 (1991) for the proposition that the severity of discipline is imposed on the risk caused by the infraction rather than the harm caused by infraction. In Hansen a prison guard was immediately terminated because he fell asleep on duty while alone at a penitentiary. The court found Petersen’s case more like the Hansen case that it did the Ahmann case that Petersen relied upon. In Ahmann a clerical worker at a prison was re-instated after being fired for failing a drug test. The court distinguished Ahmann from Petersen because Ahmann was not in direct contact with the prisoners and was not found to be under the influence of drugs at work as was Petersen.

Just cause for termination is common to most union contracts and gives unionized employees more protection than the at-will employees. For example the plaintiff in Ahmann would have had no grounds to challenge his termination under at-will employment.  However under a just cause standard Ahmann was re-instated. However a just cause standard is not a license for unionized employees to disregard common sense in the workplace.

 

 


 

 

 

October 2, 2011

Interactive process key to ADAAA compliance.

Under the Americans with Disabilities Act Amendments Act of 2009 an employee is considered disabled if they have a condition that substantially limits them from doing a type of work. A majority of workers compensation claimants will fall into this category. Once disability is established employers have a duty to engage in an interactive process to see if a reasonable accommodation can be made to keep the worker employed.

 

Employers often put employees in light and restricted duty jobs as a way to reduce workers compensation costs. Often times employers, doctors and insurers through nurse case managers work together to determine if an employee can go back to work. The problem with this arrangement is that employees are often kept out of that discussion. Some employers/insurers believe that an employee’s description of their disability is not relevant. This misconception can lead to legal problems under the Nebraska Workers Compensation Act and under the ADAAA

 

Under the Nebraska Workers Compensation Act an employee is free to testify to the extent of their own disability once causation of the injury is established. Luehring v. Tibbs, 235Neb. 883, 457 N.W. 2d 815 (1990). The practical effect of this rule is that the court will disregard doctor-given restrictions, even those attained by an FCE, if they find the claimant’s description of their disability to be credible. Credibility is crucial not just for client’s but for medical providers as well. Insurers and employers might save money through the aggressive use of nurse case managers and occupational medical clinics on the front end of the claim. But employers/insurers may face push back from the court if they believe the injured worker was treated unfairly by their medical providers and employer.

 

Permanent disability also raises ADAAA compliance issues. Under Nebraska law disability for workers compensation purposes“(The) Probably dependability in which claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of  a particular employer or friends, temporary good luck or, the superhuman efforts of the claimant to rise above crippling handicaps.” Money v. Tyrell Flowers, 275 Neb. 602, 748 N.W. 2d 49 (2008). ADAAA reasonable accommodation is limited to a single employer, so it could follow that an employee who is permanently and totally disabled for workers compensation purposes can still have a disability discrimination claim if the employer does not attempt to make an accommodation. That is exactly what happened in. Cuillette v. City of Los Angeles __ Cal.Rptr.3d __, 194 Cal.App.4th 757 (2011) In Cuillette a Los Angeles police officer who had been accommodated in a desk job was let go after he was found to be permanently and totally disabled.  Despite the fact that Culliette was able to do the desk job, he was terminated on the advice of the city’s workers compensation carrier who stated that since plaintiff was permanently and totally disabled that he was unable to work. Cuillette was awarded $1.5 million by aCalifornia jury.Nebraska juries are normally less generous to plaintiff’s, but even here failure by workers compensation insurers to take the ADAAA into account could be costly.