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.

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[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/

HOLIDAY WEEKEND SURVIVAL TIPS & TRICKS

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

Labor Day Holiday Weekend is finally upon us. It’s the last hoorah of summer. The weekend signals a farewell to pool parties, trips to the lake and bathing in the sun. Over the upcoming weeks we will say hello to sweater weather, pumpkin spice and (hopefully!) cooler temperatures. So as you head into the long weekend, please keep in mind the potential for danger so you can avoid any delay to your fun.[1]

The National Highway Safety Administration (NHSA) marks Labor Day weekend as a time for increased vigilance for law enforcement officers on the roads.[2] While for some this may merely mean to tap the breaks on their lead foot, for everyone it warns of the potential for drunk drivers on the road and the accidents that could happen because of them. During the 2017 holiday weekend, 376 people died in accidents due to drunk drivers.[3] So as you and your loved ones pack into the car to travel, the NHSA has some helpful tips to keep safe on the roads.

• Drinking and driving is never okay. Even after a single alcoholic beverage. Plan ahead for a designated sober driver for when the party ends.
• No matter the source of impairment, the new slogan by the NHSA shows that driving high still gets a DUI. So again, make a plan and stick to your designated driver position.
• If you or a passenger think another car on the road might be driven by an impaired driver, pull over and report the vehicle to 911.
• If you notice someone else is attempting to leave in their own car while impaired, take action and make a plan for them to get home safely. You never know who might be saved down the road.

If your weekend involves activities around the water, like boating, make sure your children are properly supervised at all times. Even if a lifeguard is on duty, a second set of eyes on your little ones can make the difference.[4] Never let children who don’t know how to swim be near the water alone. A floatation device is no fool-proof method for avoiding disaster. But in case of disaster, learn how to perform CPR on both kids and adults. A good defense is the best offense when it comes to water safety.

Labor Day weekend is your last chance at summer activities as the year rushes on. Let it be a weekend of fun for you and your family by knowing the potential for hazards and planning to avoid them before it can pose a threat to your holiday.

If you find yourself or a loved one happen to be involved in an accident during this holiday weekend 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.

 

[1] https://www.tesh.com/articles/protect-yourself-if-you-swim-in-a-lake-or-river/

[2] https://www.nhtsa.gov/drunk-driving/drive-sober-or-get-pulled-over

[3] Id.

[4] https://www.poolsafely.gov/parents/safety-tips/

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.

Photo credit: http://perrylocal.org/whipple/2016/08/08/bus-safety-for-the-2016-2017-school-year/

 

 

 

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/holiday-weekend-survival-tips-and-tricks/

A SAFER RIDE THIS YEAR

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

Back to school season is upon us once again. Backpacks are being filled with school supplies and new teacher orientations attended. With the new school year beginning, it’s important to prepare beyond the ordinary shopping list.

According to the Alabama State Department of Education, 49.1% of students take the bus to school each day.[1] To ensure the well-being of those students, the transportation department made safety improvements over the summer break to the buses shuttling kids back and forth each day.[2] Such protective measures included the installment of automatic brakes that engage when a bus driver gets too close to a car in front and driver assist when the bus is cruising on wet roads.[3]

Even with the added precautions taken by the department of transportation of adding safety features within the bus itself, the safety of the student in your home is still your responsibility. For those students that ride the bus, steps can be taken on your own to make the trip safer.

• Arrive at the bus stop at least five minutes before the bus is scheduled to arrive.
• When waiting at the bus stop, stay out of the road and keep your child from letting their play get out of hand.
• Wait for the bus to stop completely before approaching the bus to board.
• Instruct your child to remain seated on the bus and keep their arms and legs inside the windows at all times.
• Convey the importance of not distracting the driver by shouting or playing to your bus rider.
• Show your child the bus’s blind spot – which is anywhere within ten feet of the front of the bus – and instruct them not to walk within it.
• Teach your child to only cross the street and designated crosswalks and to obey traffic signals and signs.
• When walking home from the bus stop, tell your child to take the same route each day, never to use a short cut, and to avoid strangers by keeping their distance from anyone they don’t know.
• Encourage them to make friends at their bus stop so they can walk home from the stop together each day.[4]

Getting to school should never be a source of injury or anxiety. By talking with your child about the potential dangers and the precautions they should take to keep safety within their control, you can be sure that the only worry you’ll have is relearning math to help your student finish their homework this year.  For more information, please click here: http://bit.ly/2Nr8fpn

If you find yourself or a loved one having been injured from a bus incident, 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://www.alsde.edu/sec/pt/Pages/factsandstatistics-all.aspx?navtext=Facts%20%20and%20Statistics.#.

[2] https://www.wbrc.com/2019/04/30/improving-school-bus-safety-with-new-technologies/.

[3] Id.

[4] https://www.adt.com/resources/back-to-school-safety.

Photo credit: http://perrylocal.org/whipple/2016/08/08/bus-safety-for-the-2016-2017-school-year/

 

 

 

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/school-bus-safety/

LEASH IT OR LOSE IT

PREDATOR VS. PREY: HOW KNOWING THE DIFFERENT TYPES OF WORKERS’ COMPENSATION BENEFITS CAN MAKE SURE YOU’RE NOT DROWNING IN DEBT

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

Every year, the Discovery Channel brings a week long special to households across the country: Shark week. Each day features programming directed towards the magnificent predators of the ocean. Whether it is the Great White, Hammerhead, or Nurse shark, chances are you will be educated on all different types during Shark week.Like the various types of sharks that inhabit the ocean, there are various types of workers’ compensation benefits and knowing what you may be entitled to can save you money in the long run.

Medical care

If you are injured at work, there is a high probability that you are going to incur medical bills. Whether it be doctor visits, prescriptions, or even surgery, the costs add up. Workers’ compensation benefits can help cover the costs of medical care including the costs to identify and treat the condition or injury you may experience as a result of a workplace injury. Some benefits may even cover additional expenses such as counseling and pain therapy.

Other alternative forms of medical care such as acupuncture, aromatherapy, or energy healing may be recognized, but traditionally are not approved through workers’ compensation. If you are interested in alternative medicine, it is always best to check before incurring associated costs.

Disability

Unlike medical care costs which are designed to cover future expenses, disability is a way to cover lost expenses. Depending on the severity of the injury, you may be out of work for a prolonged period of time. Without work, it can be hard to pay the bills. With disability benefits, you can be compensated for lost wages while you are out of work. There are four different types of disability benefits you may be entitled:

Temporary total disability applies when you are out of work, but will be able to return. The period may be unknown, but it is likely that you will be back after recovering from the injury.

Temporary partial disability would be awarded where you are able to complete some of your work related tasks, but may be unable to perform your job to the fullest extent. Just like temporary total disability, the effects of the injury are short in duration and it is expected you will be able to return to your normal job once the injury is healed.

Permanent total disability is given where you are never going to be able to return to your job. You might be able to still work, but you are unable to work in the same or a similar position as you did before the injury and cannot earn wages similar to what you earned when you got hurt.
Permanent partial disability covers permanent injuries, but they may only partially affect your ability to work.

Rehab

Rehabilitation benefits generally cover the costs of physical therapy that may be needed to regain strength and coordination necessary to return back to work.

Death

Unfortunately, there may be an instance where a workplace incident results in death. In the unlikely event a loved one dies as a result, workers’ compensation may provide for funeral and burial expenses and will likely provide financial support where the deceased was a dependent source of income.

Mileage Reimbursement

One of the benefits an injured worker can receive in an Alabama workers’ compensation claim is reimbursement on mileage when they go to the doctor, pharmacy, physical therapist or hospital for prior approved care. Effective January 1, 2019, the mileage rate is 58 cents per mile.

This is just a general overview of some of the benefits you may receive when you are hurt at work. If you have questions about your work comp benefits, give us a call today.

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.

 

Photo credit: Daniel Norwood, divephotoguide.com

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/predator-vs-prey-knowing-different-types-of-workers-compensation-benefits/

HOW QUICKLY CAN SOCIAL MEDIA GET STUDENTS IN TROUBLE?

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

Social media dominates the lives of teenagers. Thumbs and foreheads is all you see with most of them! Today’s typical high schooler sees no limits or consequences on their perceived right to post or say what they want on social media. Without proper education (or attitude) this is creating more and more real world problems for them. As awareness of divisive and hateful social media posts continues to increase, the extent that the social media posts could lead to civil or criminal repercussions is gaining more attention.

On March 4th, Alabama high school students posted a racially contentious social media video that attracted national news attention. The video consisted of a group of suburban white students going back and forth talking in a very insulting manner about the Holocaust, Jewish people, African-Americans, and using the n-word multiple times. The incident has again prompted the discussion of whether the students face any form of punishment from their high school for this video. In addition, whether the students face any legal problems, either in a civil suit or criminal charges.

The video was made at a private residence and not part of any school function. So far the school has taken the position that although the conduct was not part of a school function, it still had a direct conflict with the school system’s values as well as repercussions to the student body. The school officials are still investigating the situation and looking at options under their Code of Student conduct. In the week after it was posted, this video had already been viewed more than two million times. Thousands of shares and comments followed. Additionally, at least one business may be impacted as well.

Right now, one of the highest priorities in education is eliminating discrimination and bullying. A school system can investigate imposing disciplinary actions against students if their actions rise to the level of hate speech or discrimination specifically directed against fellow classmates. The First Amendment right to free speech gives some protection to the students. The struggle between what is hate speech verses protected free speech is what makes this such a tough issue. Clearly schools and the public in general do not condone or desire to allow this behavior to stand without punishment. The question is whether the speech in social media posts are so directly linked to other students at the school to allow for school discipline, such as suspension or expulsion. If the video is substantially disruptive, threatening and harassing as to school’s teachers or other students then the school could seek to discipline the students. The students could challenge the action.

Legal actions throughout the country have ruled for schools in some instances upholding the discipline and others ruling for the students. At this point the United States Supreme Court has not ruled on the issue of off-campus speech and associated school discipline. More recently, in 2016, the US Supreme Court declined to hear the case of the former high school rapper, Taylor Bell, who was suspended for posting online a profanity-filled rap about two school coaches — despite splintered decisions from lower courts about students’ off-campus, online speech and the reach of school officials’ authority and discipline.

The action and conduct of the students could be deemed hate speech. Hate speech is speech which attacks a person or group based on attributes of race, religion, ethnic origin, national origin, sex, disability, sexual orientation, or gender identity. Criminal prosecution can also be instituted for threatening hate speech. Once again, the protections of free speech under the First Amendment are directly at issue. At best, the issue of whether the video could lead to prosecution is very much in doubt.

Although the video does not appear to target one specific individual, if someone is specifically harassed or attacked in a social media post the person so attacked could bring a civil claim for damages in a civil action for harassment or possible emotional distress.

Social media posts whether made in jest or with hateful intentions can lead to various consequences. A social media post has long standing ramifications. The more egregious the post the more likely that the students could face discipline. Education of young people (adults too!) is vitally important to show them the potential consequences of their actions. However, like anything else in life, until it becomes are issue for that teen, it may too late to correct their harmful actions.

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. 

 

Photo Credit: https://www.theplainsman.com/article/2019/02/auburn-city-schools-investigates-racist-photo-posted-by-student

Sources

News

https://www.nbcnews.com/news/us-news/alabama-high-school-students-filmed-using-racial-slurs-n979146

Video

Video2

https://nypost.com/2019/03/05/video-shows-alabama-high-school-students-using-n-word-anti-semitic-slurs/

Investigating

https://www.cbsnews.com/news/alabama-students-use-racial-slurs-in-viral-video-2019-03-05/

Conduct

https://www.cbsnews.com/news/alabama-students-use-racial-slurs-in-viral-video-2019-03-05/

Business

https://www.al.com/news/2019/03/protest-held-at-hoover-dealership-following-racist-video.html

Legal Action

https://theconversation.com/can-schools-punish-students-for-off-campus-online-speech-52466

Taylor Bell

Supreme Court denies review of Taylor Bell case on student off-campus, online speech

 

from The Nomberg Law Firm – Birmingham Workers' Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/how-quickly-can-social-media-get-students-in-trouble/