WHOSE WILL IS IT?

When you hear the phrase “at-will” employment, it’s only natural to think one of two things: every working relationship is “at-will” because all the parties involved chose to be there, or, I don’t actually want to work at all; give me a white sand beach and that’s where my will wants to be. Regardless of what you may think of the term, or how it may apply to you and the job you have, for Alabama employees it is important to know exactly how to classify your working situation. It can make all the difference in your rights in the workplace.

You’ve probably heard this phrase thrown around the most in the context of the government lately when the news broadcasters say an official “serves at the pleasure of the president.” Well, think of yourself, the employee, as the official and your boss, the employer, as the president. An “at-will” employee is one who works, and potentially ceases to work, at the pleasure, or discretion, of the employer. An employee can be fired for any or no reason at all.

It is presumed that this kind of working relationship exists unless there is contrary evidence, such as a contract stating other parameters regarding employment. Otherwise, you can usually find statements categorizing your employment as at-will in the application you filled out to obtain the position or in your employee handbook. It is a rare occasion that an employer leaves this relationship’s classification open to interpretation. While this description also indicates that an employee can leave his position if ever he chooses for any reason he sees fit, this distinction doesn’t immediately bring the sense of stability or empowerment that an employee imagines his employer to have in this type of relationship. The state of Alabama recognizes this relationship as fair, but for you, the employee, to feel safe in a workforce based on this dynamic, it’s important to know your rights and any exceptions that can swing the pendulum back in your favor.[1]

Exceptions exist to what is referred to in the legal community as the at-will employment doctrine. Such exceptions include termination for seeking workers’ compensation benefits, retaliation, and discrimination.[2][3] In Alabama, employers cannot fire solely because an employee seeks workers’ compensation benefits – this is a protection under the Alabama Workers’ Compensation Act.  If an employee is fired because he files a claim or an employer believes an employee will file such claim, this constitutes wrongful termination under the law and an employee is protected from this act. Likewise, if an employee is fired for retaliatory reasons, an example of which would be a termination in response to complaint of sexual harassment or an employee’s refusal to commit illegal activities at the request of the employer, he is entitled to protection again because this constitutes wrongful termination. Discrimination against age, race, gender, religion, national origin, and disability is also grounds for wrongful termination. An Alabama employee is protected by federal law if fired for such a reason.

As an employee in Alabama, it is important to know your rights in an “at-will” employment relationship and to recognize that you are not always at the mercy of the whims of your employer. Seek aid if you suspect that you lost your job by means of wrongful termination.

 

For related articles:

• Employee or Independent Contractor? http://bit.ly/371YcxB
• Employees and the Gig Economy. http://bit.ly/2PCCWs1
• You Mean That My Employer Can Read My Tweets? And Fire Me After Reading My Tweets? What Do My Tweets Have To Do With My Job???!! http://bit.ly/2tBZXmJ

As we have since 1967, we will continue to protect the legal rights of our clients – those who are hurt on the job while working for Alabama employers.  If you have been injured on the job and want to learn your rights, please consider contacting the Nomberg Law Firm. Our office number is 205-395-0532 and website www.NombergLaw.com. Our office is located in Birmingham, Alabama. We handle cases throughout our great State.

 

[1] Ex Parte Moulton, 116 So. 3d 1119, 1134 (Ala. 2013).

[2] Tyson Foods, Inc. v. McCollum, 881 So. 2d 976, 978 (Ala. 2003); Coca-Cola Bottling Co. Consol. v. Hollander, 885 So. 2d 125, 130 (Ala. 2003); Willmore-Cochran v. Wal-Mart Associates, Inc., 919 F. Supp. 2d 1222, 1239 (N.D. Ala. 2013).

---

Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2018, Bernard was named a Super Lawyer for the 6th year in a row and he was recognized as one of the Top 50 Lawyers in Alabama.

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/at-will-employment-state/

IDENTITY THEFT – DON’T BECOME A VICTIM

Photo cred: https://www.debt.org/credit/identity-theft/

There is an app for almost everything – grocery shopping  – pet sitting  – tracking steps you have taken and storing your heart rate information – so much of our private information is at the mercy of third parties. We just hope that their security measures are enough to stop hackers. But it’s not always enough to prevent identify theft. Identity theft is more prominent than ever before.

Recently, an app that pays you for not texting and driving was the source of information for an identity thief for a sixteen year old child. The allure of the app for her was that it reportedly pays five (5) cents per mile for not texting while driving, and two (2) cents per mile that the driver does not text and drive for the passengers. [1]  The app targets primarily teenagers and young adults ages 16-25.[2] Cash for being safe is great motivator for teens. They need the money and assume their parents would agree this is a good idea. However, this is not always the case!

This teen signed up on the app (in like two minutes flat!) and she quickly discovered that her license was already in use.  She had become a victim of identity theft.  Her information was already being used on the app to earn someone else money using her name and drivers’ license number. Yikes!

How should this teenager and her parents handle this breach of her identity?

Thankfully, there are several things that should be done in a timely manner. First, a cease and desist letter must be sent to the company that runs the app. Whether hiring a lawyer to handle this depends on your level of comfort and need for one. Second, contact the credit reporting agencies to notify them of the problem. Third, consider signing up for a paid identify protection service such as Identity Guard, Identity Defense, myFico, LifeLock, etc.³

Victims of identity theft also have protections under the Identity Theft and Assumption Deterrence Act. ⁴ The Act makes it a crime, under certain circumstances, for a person to knowingly and without lawful authority produce an identification document, authentication feature, or a false identification document; or knowingly possess an identification document (other than one issued lawfully for the use of the possessor), authentication feature, or a false identification document, with the intent that the document or feature be used to defraud the United States.

The section of the Act that would pertain more to the app in this particular scenario states “It is also a crime if a person knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of federal law, or that constitutes a felony under any applicable state or local law or knowingly traffics in false authentication features for use in false identification documents, document-making implements, or means of identification”.  The app in this case “transferred, without lawful authority, a means of identifications of another person in connection with unlawful activity” and, as the statutory language tells us, this violates federal and local law.⁴

There are many other ways to reduce the risk of identity theft. Here are some ways to reduce your risk of becoming a victim of identity theft: 5

• Do not give out personal information to anyone. Confirm who they are first
• Avoid clicking links online you’re unsure about
• Shred documents with any personal/banking information on it
• Don’t keep your social security card on you, it could get stolen along with your wallet/purse
• Only carry credit cards you use on a daily basis
• Protect your mailbox and where your packages are delivered. You can get extra protection through the deliverer/carrier.
• Monitor your online accounts with any personal/sensitive information on them
• Create strong/creative passwords online
• Use two factor authentication (requires second piece of proof of identification)
• Avoid using public Wi-fi when dealing with sensitive information
• Check your credit report regularly and check for suspicious activity
• Cut up old credit cards
• Only shop online with trusted sites and consider using Paypal or another secure payment system
• Don’t over-share on social network
• Don’t respond to unsolicited requests
• Consider freezing or locking your credit
• Monitor all your billing cycles
• Implement biometric options (fingerprint, handprint, eye scan, facial recognition)
• Keep up with latest in identity theft, educate yourself
• Consider an identity theft protection service

What Should You Do If You Have Your Driver’s License Stolen?

Here are a few suggestions:

• Immediately contact police to report the theft.
• Contact the DMV to report the stolen license. They will tell you how to proceed to replace your license and what to do about driving until it is replaced.
• Put a freeze on your credit. Your driver’s license number plus all the other information on the license provides enough information for a thief to open accounts in your name.
• Continue to monitor your accounts. That includes requesting a copy of your official driving record to make sure a thief did not use your driver’s license number to cover their traffic violations and signing up for a background check (the police or your bank should be able to recommend a reputable company). Do this periodically to make sure all is clear.
• Change the locks on your doors (after all, since they have your license, they have your address).

For more information on identity theft and credit reporting issues, click the link below to check out our discussion with attorney Whitney Seals.  http://bit.ly/33MTiTU

 

As we have since 1967, we will continue to protect the legal rights of our clients – those who are hurt on the job while working for Alabama employers.  If you have been injured on the job and want to learn your rights, please consider contacting the Nomberg Law Firm. Our office number is 205-930-6900 and website www.NombergLaw.com. Our office is located in Birmingham, Alabama. We handle cases throughout our great State.

 

Sources:

[1] https://onmyway.com/blog/

[2] https://onmyway.com/blog/

[3]  https://www.reviews.com/identity-theft-protection-services/

4 http://bit.ly/2q8CPuo

[5]§ 22:2.Federal Identity Theft and Assumption Deterrence Act, Info. Security & Privacy: A Guide to Fed & State Law & Compliance § 22:2

 

---

Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2018, Bernard was named a Super Lawyer for the 6th year in a row and he was recognized as one of the Top 50 Lawyers in Alabama.

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/identity-theft-dont-become-a-victim/

THIRD-PARTY LIABILITY COULD MEAN MORE MONEY

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

[1]

Suffering an injury while at work does not always mean paid time off or an easy reduction in your workload while on the job. Alabama laws dealing with injured workers fall short in most instances in fully protecting their rights. Often, it means taking a hit to your bank account on top of the bodily pain. But what if it was possible to increase the maximum compensation you receive for the injury you didn’t ask for?

In Alabama, there is a law that allows for an injured employee to recover payment for both workers’ compensation benefits as well as monetary damages.[2] According to the law, if a worker’s injury is suffered while on the job but due to the negligence of a third party (not a co-worker or an employer), a separate action in tort can be brought in addition to the benefits owed the employee. A tort is a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability.³

Think of it this way. You, the injured worker, are the first party, and your employer is the second party. When neither of these people are at fault, that is when you look to the third-party for a tort claim. Some common examples of third-party liability include:

• Car accidents while on the job: a driver making deliveries, running errands for your boss, or driving between work sites.
• Working off-site on someone else’s property when you sustain an injury from poorly maintained and hazardous conditions such as a slip-and-fall accident.
• An injury from a tool, machine, or piece of equipment that was defectively designed.
• Being injured on your own job site by an independent contractor.

Each of these examples is just one of many ways when liability for your injury is caused by someone or something outside of your employer’s control. If the circumstances leading up to your injury sound similar to this, you could have a case where suit against a third-party is possible.

The reason this matters at all for those injured on the job is because it increases the money paid to the employee. Workers’ compensation benefits do not cover lost wages, mental pain or anguish, and they definitely do not include punitive damages. But a tort action provides compensation for these very things, which, when added to benefits paid by the employer, can make your injury seem a little more bearable after all.

As we have since 1967, we will continue to protect the legal rights of our clients – those who are hurt on the job while working for Alabama employers.  If you have been injured on the job and want to learn your rights, please consider contacting the Nomberg Law Firm. Our office number is 205-930-6900 and website www.NombergLaw.com. Our office is located in Birmingham, Alabama. We handle cases throughout our great State.

 

Sources:

[1] Photo cred: https://lawsoup.org/legal-guides/injuries/.

[2] Ala. Code § 25-5-11 (2018).

³ https://dictionary.law.com/Default.aspx?selected=2137

Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2018, Bernard was named a Super Lawyer for the 6th year in a row and he was recognized as one of the Top 50 Lawyers in Alabama.

---

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/third-party-liability-could-mean-more-money/

WHY YOU WILL NOT RETIRE OFF YOUR ALABAMA WORK COMP CASE

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

Patrick T. Fallon for ProPublica

It is normal to expect you should be adequately compensated after being injured on the job and in fact, you really should be adequately compensated. But the reality is that Alabama’s workers’ compensation laws¹ are antiquated (“modernized” in 1992) and not favorable to injured employees. That is why a lot of employees who go to an attorney after being injured on the job find themselves feeling very let down when they discover the actual compensation they will end up receiving and how long the process can take. A problem that leads to this result is how often most people are misled by advertisements seen on billboards and television commercials promising millions of dollars in compensation. It is unrealistic and does not align with the current Alabama workers’ compensation laws.

Since 1985, a scheduled member injury such as a finger, hand or foot, pursuant to Alabama Code §25-5-68, caps recovery of permanent partial disability benefits to injured workers to a maximum of $220 per week. This is the lowest amount in the country.² Under Alabama Code §25-5-57(a)(3)g., temporary total disability benefits are two-thirds of a workers’ average weekly wage, but cannot exceed a maximum amount set by law each year. As of July 1, 2019, the maximum benefit is $892 per week. This cap only kicks in if the annual salary is around $65,000 or more.  In the past twenty years, several attempts in our legislature to change the law and update these figures have failed.

Propublica.org published an interactive article³ that shows the large discrepancies between what injured employees can recover in each state for various body parts they hurt on the job. Sadly, it is a great demonstration of how outdated and behind Alabama’s workers’ compensation laws are, given that each injured body part is worth significantly less compared to the majority of other states in the United States.  For example, in Alabama, a fully injured arm can be worth up to $48,000, but that same injury in Georgia may be worth up 10-20x (or more) that amount.

This is happening, in part, because Alabama’s laws have not been modernized since the early 1990s when the cost of living was much less and $220 was two-thirds of the Alabamian workers’ average weekly wage. That arm injury mentioned above is worth the same in 1994 as it is twenty-five years later in 2019. (Reread that sentence!) Does gas, milk or groceries cost the same now as it did in 1994? Not even close.  The cost of living rises annually, but not the value of injuries to Alabama employees.

Injured workers in Alabama are not the only employees affected. Around the country, workers’ compensation laws have been slashed and dismantled over the last decade. ⁴ This is being caused by big businesses and insurance companies claiming that costs are out of control, while they are disguising this dismantling of workers’ compensation benefits as “reform” due to the “high costs”. In fact, this has been proven to be false – employers have pushed off these costs to American taxpayers. This was discovered during an investigation conducted by ProPublica and the NPR,⁵   which among other things also discovered:

• Since 2003, legislation in 33 states have passed workers’ comp laws that reduce benefits or make it more difficult for those with certain injuries and diseases to qualify for them. Florida has cut benefits to its most severely disabled workers by 65% since 1994.
• Where a worker gets hurt matters. Because each state has developed its own system, an amputated arm can literally be worth two to ten times as much on one side of a state line than the other. Another stark example how far behind we are in Alabama… the maximum compensation for the loss of an eye is $27,280, but $261,525 in Pennsylvania. Wow! Why would people want to work in Alabama where the injury benefits are so far behind?
• Many states have not only shrunk the payments to injured workers, but they have also cut them off after an arbitrary time limit — even if workers have not fully recovered. One not so unusual example was after John Coffell seriously hurt his back at an Oklahoma tire plant, his wages dropped so dramatically that he and his family were evicted from their home.⁶ His situation is far from uncommon. Sadly, we have dealt with that situation with our clients many, many times.

• Employers and insurers increasingly control medical decisions, such as whether an injured worker needs surgery. In 37 states (including Alabama), workers cannot pick their own doctor or are restricted to a list provided by their employers. Additionally, utilization review (a health insurance company’s opportunity to deny a request for medical treatment) further slows down the request for much needed medical care.

• In California and many other states, insurers reopen old cases and deny medical care (like utilization review) based on the opinions of doctors who never see the patient and don’t even have to be licensed in the state. One really bad situation of this was involving Joel Ramirez, who was paralyzed in a warehouse accident, had his home health aide taken away, leaving him to sit in his own feces for up to eight hours. ⁷

Glenna Gordon for ProPublica

The laws for employees in workers’ compensation cases in some states in America, including Alabama, are completely unacceptable and need drastic changes. Given these findings, Alabama workers’ compensation laws need a different type of “reform” than what the big corporations and insurance companies have in mind. At the very least, the laws need a reformation that allows adequate compensation for the injured employee. They need to be modernized, based on the current economy and ever-evolving societal needs for injured workers. We truly hope that these laws in our State are brought into alignment with other states that better protect their workers.

In the meantime, as we have since 1967, we will continue to protect the legal rights of our clients – those who are hurt on the job while working for Alabama employers.  If you have been injured on the job and want to learn your rights, please consider contacting the Nomberg Law Firm. Our office number is 205-930-6900 and website www.NombergLaw.com. Our office is located in Birmingham, Alabama. We handle cases throughout our great State.

Sources:
[1]https://law.justia.com/codes/alabama/2006/19360/123309.html
[2]https://www.propublica.org/article/alabama-bill-would-increase-workers-comp-benefits-for-amputees
[3]https://www.propublica.org/article/how-much-is-your-arm-worth-depends-where-you-work
[4]https://www.propublica.org/article/the-demolition-of-workers-compensation
[5]https://www.npr.org/series/394891172/insult-to-injury-americas- vanishing-worker-protections
[6]https://www.propublica.org/article/injured-worker-propublica-npr- story-testifies-before-illinois-legislature
[7]https://www.propublica.org/article/workers-compensation-injured-workers-share-stories-of-harm

 

Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2018, Bernard was named a Super Lawyer for the 6th year in a row and he was recognized as one of the Top 50 Lawyers in Alabama.

---

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/why-will-you-not-retire-off-your-alabama-work-comp-case/

EMPLOYEE OR INDEPENDENT CONTRACTOR

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

[1]

Lately it seems there has been a surge of litigation and uproar surrounding workers and their relationship to the companies that procure their services. Especially in the truck driving industry. While a contentious relationship with the boss is a tale as old as time, the current facet of this controversy is catching the attention of workers and creating buzz in courts around the country. The new source is classification of workers. The companies want, and indeed benefit from, calling those who render services “independent contractors.” Meanwhile, those same workers wish to be deemed “employees” and receive all the benefits and protections that accompany such designation. We all may be familiar with the terminology that dominates any discussion of the issue, but what do we really know about the mechanics behind the classification?

When litigation ensues and courts are tasked with determining the status of an employee, multiple factors are taken into account and reviewed on a case-by-case basis. To name a few, a judge will look at the employer’s ability to control the execution of services by the worker. Whether the company actually uses this right bears no weight on applying the analysis. If a company retains the ability to set a worker’s hours, establish routes, determine the loads carried (with no chance for the driver to decline), require safety meetings and standards for drivers, and has a set uniform are typical signs of an employee-employer relationship. Also taken into consideration is the contract executed between the driver and corporation, the driver’s ability to contract his services out to other companies, the way the driver is paid, and the driver’s autonomy in deciding how to handle his truck and various equipment. How these factors relate and assume weight is a gray area still being explored by developing case law.[2]

In Alabama specifically, these factors are nearly synonymous with the test that will be applied to each case. The test exactly stated is “whether the other person has reserved the right of control over the means and method by which the person’s work will be performed, whether or not the right of control is actually exercised.”[3] Again, the ambiguity continues in the state cases until the individual facts are reviewed. However, the factors enumerated are still the best indicator of where a claim stands. If a worker has to abide by strict standards imposed by a company and loses his own ability to direct his work, basically forfeiting his independence, it stands to reason that the classification as “independent contractor” is lost as well.

If you have questions about your classification as a driver or if you are injured while driving or riding, please call The Nomberg Law Firm. We are located in Birmingham, Alabama. Office number is 205-930-6900.  For further information, please visit our website: Nomberglaw.com.

 

[1] http://www.personalinjuryloans.net/Big-Rig-Semi-Trailer-Truck-Presettlement-Loans

[2] https://www.colonialtruckinginsurance.com/employee-independent-contractor/

[3] Lifestar Response of Alabama, Inc. v. Admiral Ins. Co., 17 So. 3d 200, 213 (Ala. 2009).

Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2018, Bernard was named a Super Lawyer for the 6th year in a row and he was recognized as one of the Top 50 Lawyers in Alabama.

---

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/employee-or-independent-contractor/

EMPLOYEES AND THE GIG ECONOMY

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

For many of us we hear “gig economy” and think it’s another millennial hashtag with absolutely zero meaning in our everyday life. But really, the emergence of the gig economy has a direct impact on us all. Put simply, the “gig economy” is a new way of saying independent contract or part-time work, and over 55 million people are working this way now.[1] That number is only expected to grow as technology and time progresses. So this raises a new question: if corporations are switching to contract labor as opposed to employed workers, what happens to benefits like Social Security, workers’ compensation, and other benefits that come with being an employee?[2]

Companies like Lyft and Uber use the “gig” business model to contract out its work, and thereby avoid paying claims like expense reimbursement to drivers, minimum wage standards and overtime pay, and taxes to the IRS. This triggered a slew of lawsuits by drivers who want to be classified as employees. Lyft has already settled some of these suits to the tune of nearly $29 million.[3] Meanwhile Uber has suggested it is willing to pay up to $170 million to quiet the riot of lawsuits barraging it.[4]

The central idea to these lawsuits is that the companies want to find a new way to classify employees in an already heavily regulated area and the drivers believe their rightful classification is as an employee.[5] So far, the app-based companies are in the lead at the federal scale. Peter Robb, in his office as general counsel for the National Labor Relations Board, declared in a memo in May that Uber drivers are independent contractors and not employees because they “set their hours, own their cars and are free to work for the companies’ competitors.”[6] This means drivers are unable to unionize and obtain the legal protection unions provide for workers complaining about working conditions.[7]

California’s response to the upheaval has been what is known as Assembly Bill 5. This bill adds a new element in California to the federal test to determine employment status. The new element being that the company wanting to classify the workers as independent contractors has to show the work performed is outside the usual course of business for the entity.[8] While Uber has responded with confidence that it will still be able to pass the test at the state level, those outside the corporation are not so sure. This confidence will be tested on January 1, 2020 because Governor Newsom of California signed the bill and it is set to take effect on that day.[9] The significance of California making this law and not the federal government is that the corporations are based within the state; so the state law controls what the companies can and can’t do. However, it will still take time and litigation to prove the effects this new law will have on the gig companies, whether the companies will move to avoid an unfavorable outcome or continue to gain clearance to operate as usual. Only time, and more lawyers, will tell.

If you have questions about the gig economy, your classification as a driver or if you are injured driving/riding in an Uber/Lyft, please call The Nomberg Law Firm. We are located in Birmingham, Alabama. Office number is 205-930-6900.  For further information, please visit our website: Nomberglaw.com.

 

Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2018, Bernard was named a Super Lawyer for the 6th year in a row and he was recognized as one of the Top 50 Lawyers in Alabama.

---

[1] https://www.forbes.com/sites/quora/2019/01/08/what-are-the-pros-and-cons-of-the-gig-economy/#7bf8ede71388

[2] https://www.whateverison.com/here-are-answers-to-every-uber-lyft-customers-questions/

[3] https://techcrunch.com/2019/03/01/lyft-lays-out-financial-risks-associated-with-reclassifying-drivers/

[4] https://www.reuters.com/article/us-uber-contractors/uber-drivers-are-contractors-not-employees-us-labor-agency-says-idUSKCN1SK2FY

[5] https://www.inc.com/minda-zetlin/uber-california-ab5-tony-west-employees-independent-contractors-lawsuits.html

[6] https://www.reuters.com/article/us-uber-contractors/uber-drivers-are-contractors-not-employees-us-labor-agency-says-idUSKCN1SK2FY

[7] https://www.reuters.com/article/us-uber-contractors/uber-drivers-are-contractors-not-employees-us-labor-agency-says-idUSKCN1SK2FY

[8] https://www.inc.com/minda-zetlin/uber-california-ab5-tony-west-employees-independent-contractors-lawsuits.html

[9] https://www.latimes.com/california/story/2019-09-18/gavin-newsom-signs-ab5-employees0independent-contractors-california

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/employees-and-the-gig-economy/

Hurt and Hunted

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

[1]

If you have been injured on the job and filed a workers’ compensation claim, it is natural to feel as though a target has been placed on your back. The constant barrage of forms to be completed and medical examinations to be attended can only increase the feeling of living under a microscope. But there might just be another eye on you that you did not expect – your employer and the insurance company.

Employers more and more are utilizing every technique possible to avoid paying workers’ compensation claims. It is common to hear stories of employees claiming workers’ compensation benefits being approached by strangers for the sole purpose of uncovering any detail that can destroy the employee’s claim for work comp benefits. These strangers are hired to unearth any point of inconsistency in your story that will lead to your employer weaseling its way out of paying you the benefits you need.

Alabama courts have made plain their stance on employers and their insurance carriers conducting surveillance. Put bluntly, the law is not on your side. Your employer can watch you in public and from public areas so long as they do not trespass. (We have previously discussed this: http://bit.ly/2k3RAf0). Courts also allow into evidence surveillance tapes against you to refute the claim you try to bring. In one case, video evidence was provided at trial showing the worker walking around without his leg brace or any visible limp – this crushed his credibility in front of the judge when he later argued at trial he had a serious, debilitating leg injury.[2]

The best way to tackle the surveillance that can seem like a giant obstacle is to be aware of the game. Just as the saying goes, knowledge is power. Once you know that your employer is out to undermine your case, you can switch to an offensive position and head them off at the pass. Here are some practical ways to shore up your case and end the dispute with the benefits you deserve:

• Video surveillance can be used to show you are not disabled. If you claim an injury in your arm, for example, do not tough out a difficult situation in public by using that arm. Maintain the level of activity your injury has limited you to and ask for help instead.
• Surveillance can also be a way to show you are not as injured as you claim and your injury is exaggerated. The only way to avoid this is to be honest about the state of your injury when making the claim. Do not “sweeten the deal” by adding unnecessary details that aren’t completely truthful.
• Another tactic is to show video of you doing more than the doctor’s restrictions to prove your injury is false. Listen to your doctor and stay well within the limits imposed based on your injury and the doctor’s consultation.
• The last method used against you is to attack your credibility. Honesty is the best way to avoid losing money because you did not want that stranger that asked how you broke your arm in the grocery store to know your private business. Approach every situation with caution, and, as always, consult with legal counsel before making any statements about your health to employers and insurance providers.[3]

Basically, use common sense! Remember your treating physician’s restrictions and limitations. Do not do something you should not be doing!

If you or a family member have a workplace accident and need legal representation, please consider contacting The Nomberg Law Firm. We are located in Birmingham, Alabama. Office number is 205-930-6900.  For further information, please visit our website: Nomberglaw.com.

Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2018, Bernard was named a Super Lawyer for the 6th year in a row and he was recognized as one of the Top 50 Lawyers in Alabama.

[1] https://finance.yahoo.com/news/tech-companies-scope-africa-surveillance-sector-145132198.html?utm=newsbreak.

[2] Dills v. Wal-Mart Stores, Inc., 777 So. 2d 160 (Ala. Civ. App. 2000).

[3] https://www.alabamalitigationreview.com/2015/07/articles/workers-compensation/surveillance/.

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/hurt-and-hunted/