On January 17, 2012, Jeanelle Lust of the Knudsen Law Firm was honored by Executive Director Robert A. Downey and the Capital Humane Society for her invaluable time, talent and efforts as an advocate for animal welfare.
February 6, 2012
Capital Humane Society Honors Jeanelle Lust
Permanent and Total Disability
In Lovelace v. City of Lincoln, 283 Neb. 12 (2012), the Supreme Court held that an employee cannot be considered permanently and totally disabled for a period of time when he or she was working part time or full time at the same job he or she had prior to his or her work-related injury.
In the instant case, Lovelace suffered an injury in the course and scope of her employment on March 21, 2006. Lovelace continued to work for the same employer after her injury until June 22, 2006, when she had surgery on her left knee. She returned to work on October 2, 2006 and continued working until November 6, 2007, when she fell and sustained an additional injury to her right leg. Lovelace had another surgery on her left knee on December 19, 2007 and did not return to work. Her position was terminated in June 2008.
The Supreme Court affirmed the review panel’s decision, which held that no benefits were to be paid prior to June 22, 2006 because Lovelace worked full time between the first accident, which occurred on March 21, 2006, through June 22, 2006. Further, the Supreme Court held that Lovelace was not entitled to permanent total disability benefits for the period of October 2, 2006 through December 18, 2007, when she was working either part time or full time and receiving temporary partial disability payments. A worker cannot be considered permanently and totally disabled for a period of time when he or she was working part time or full time at the same job he or she had prior to his or her injury. Lovelace was not an odd-lot worker and entitled to permanent total disability payments until December 19, 2007.
The Supreme Court’s opinion can be found at http://www.supremecourt.ne.gov/opinions/2012/january/jan13/s10-1241.pdf.
Supreme Court sides with church on employee firing.
The Supreme Court unanimously ruled that a school teacher who was trained in theology, directed prayer services, and taught religion classes in addition to secular classes could be terminated from employment after missing work due to a disability because of the “ministerial exception” to the Americans with Disabilities Act.
Perich was employed as a “called” teacher, as opposed to a “lay” teacher, at Hosana-Tabor Evangelical Lutheran Church and School (“School”). Perich mostly taught secular courses, however, she taught a religion class and led students in other religious activities. Perich developed narcolepsy and took disability leave. She attempted to return to work in February 2005 but was told that the school filled her position. Perich filed a charge with the EEOC claiming that her employment had been terminated in violation of the Americans with Disabilities Act (“ADA”). The EEOC brought suit against the School alleging that Perich had been fired in retaliation for threatening to file an ADA suit.
The Supreme Court unanimously held that there is a “ministerial exception” to the ADA because requiring a church to accept an unwanted minister interferes with the internal governance of the church thus infringing on the Free Exercise Clause of the Constitution. The Court also held that Perich qualified as a “minister” despite the fact that the majority of her time was spent teaching secular courses.
The Supreme Court’s opinion can be found at http://www.supremecourt.gov/opinions/11pdf/10-553.pdf
Jeanelle Lust & Kevin McManaman Win Appeal on Arbitration Issue to Supreme Court of South Dakota
After more than three years of litigation Jeanelle Lust and Kevin McManaman received a favorable opinion from the Supreme Court of South Dakota in Wright v. GGNSC Holdings et al. In Wright, the South Dakota Supreme Court determined that the unavailability of a designated arbitration forum, the NFA, was not fatal to the parties’ agreement to arbitrate.
For the entire decision click on the following: Wright v. GGNSC Holdings et al.
Do I have to pay for my neighbor’s farm division fence?
With the signing of LB 667 into law, Nebraska Revised Statutes Section 34-102 will be revised to include major changes for agricultural landowners. Under these revisions, adjoining landowners who share a fence must evenly split the cost of the division fence between them. These costs include both building and maintenance.
This revision applies to all adjoining landowners with division fences, including circumstances where one landowner has livestock and the other does not. In other words, if neighbor A grows corn on his or her land and neighbor B keeps livestock on his or her land and neighbor B wants to put up a fence, neighbor A must pay for one half of the cost of building and maintaining that fence.
LB 667 also provides that unless the neighbors pick a different type of fence, the default division fence shall be a four wire fence.
I was fired from my job! Do I have a case?
Whether you believe you were terminated from your employment for a discriminatory reason such as race, color, national origin, religion, sex (including pregnancy), disability, marital status, age or retaliation (or currently working with the discrimination), one of the most important questions you may have is, “Do I have a case?” Before you contact an attorney you should ask yourself the following:
- Background
What is your age, educational background, and employment history? Do you have a criminal record?
- Basic info about your (current or former) employer
What type of business is it? Number of employees? Has the employer been sued previously?
- Hiring process
When were you hired? For what position? Who made the hiring decision? Did s/he make any promises or representations? Did you sign anything?
- Employment history with this employer
Employment history with regard to: raises, promotions, bonuses, performance evaluations, awards, transfers, suspensions, demotions and disciplinary action?
- Events that led you to this point
If you were fired (or demoted or suffered some other adverse employment action), 1) why you think you were fired; and 2) the reason your employer gave or will give for firing you. If your case involves harassment, we will discuss the nature of the harassment (e.g., was it unwelcome; was it severe and pervasive) & your reaction to the harassment (e.g., did you complain to your employer?).
- Corroborating evidence
Were there any witnesses to the employer’s unlawful conduct? Do you have any documents to support your claims?
- Post-termination events
Have you initiated any other claims or proceedings related to your employment (e.g., unemployment, disability, workers’ compensation, or other governmental agency proceedings, or bankruptcy)?
- Potentially negative facts
Are you aware of any facts that might negatively affect litigation against the employer? These may be facts directly related to the workplace incidents or entirely unrelated (e.g., have you ever been arrested or fired from another job? Have you ever been sued or sued someone?). If you have a business and/or personal website; if you write a blog; if you use any form of social media (e.g., Twitter, Facebook), you will have to volunteer that information.
- Mitigation of damages
The law requires you to mitigate your damages by diligently seeking substantially similar employment.
- The end-game and the litigation process
What do you hope to gain from pursuing legal action against your (former) employer: a private apology; a public apology; a quick settlement; a jury verdict? What are your concerns? Settlement and litigation processes, including the time involved, the potential cost (monetary and emotional), and potential negative outcomes.
The Misrepresentation Defense in Nebraska’s Workers Compensation Law
Last week, the Nebraska Supreme Court overturned a prior decision affecting whether misrepresentations made by a potential employee during the job application process can prohibit the employee from later recovering workers compensation benefits. The decision has implications not only in the workers compensation field, but also creates limitations for employers when using application information to evaluate an employee’s workers compensation claim.
In Bassinger v. Nebraska Heart Hospital, 282 Neb. 835 (2011), the plaintiff misrepresented her history of work-related injuries on a pre-employment questionnaire for a job with Nebraska Heart Hospital. The plaintiff, who was subsequently hired, was injured on the job and filed for workers compensation benefits. Her employer denied benefits and the trial court dismissed her petition after finding that the employee willfully misrepresented her history of work-related injuries.
On appeal, the Workers Compensation Review Panel reversed and remanded the case for a determination on whether there was a causal connection between the employee’s misrepresentation and her later injury. The employer appealed and the employee cross-appealed. On appeal to the Nebraska Supreme Court, the employee argued that the misrepresentation defense is beyond what is statutorily authorized in the Workers Compensation Act, arguing against the Court’s earlier decision in Hilt Truck Lines Inc. v. Jones, 204 Neb. 115 (1979), which had adopted such a limitation on benefits. In essence, the employee argued that the Court erroneously adopted a misrepresentation defense in Hilt Truck Lines.
The Nebraska Supreme Court agreed with the employee and ultimately overturned the Hilt Truck Lines holding. The Court noted that the Workers Compensation Court is statutorily created, and therefore, it does not have equity powers. In the absence of language providing for equity powers, it is improper to add common law defenses, such as misrepresentation. The Court initially pointed to the language in the statute which the employer argued provided for a misrepresentation defense. In pertinent part, the statute states “[i]t shall not be a defense … that the employee was negligent, unless it shall also appear that such negligence was willful, or that the employee was in a state of intoxication … .” Neb. Rev. Stat. § 48-102. The employer had argued that willful misrepresentation which causes injury to the employee would constitute “willful negligence” under the statute thereby barring recovery. The Court found that this portion of the statute did not apply because it is only in relation to an “employee” not an “applicant.” As summarized by the Court, “[p]ersons who misrepresent their physical condition to obtain employment are applicants, not employees.” As the plaintiff was only an applicant at the time the misrepresentation was made, it did not preclude her recover under the Workers Compensation Act.
The full decision can be found on the Nebraska Supreme Court’s website: http://www.supremecourt.ne.gov/opinions/2011/december/dec9/s10-653.pdf.
Knudsen Law Firm Partner Presents at the National Business Institute Seminar
On December 8, 2011 Rick Reier, a partner with Knudsen Law Firm, presented two sessions at the National Business Institute Seminar on “Nebraska Foreclosures and Workouts.” The first session covered topics related to the foreclosure process including notice requirements, hearings, sale procedures and recovering deficiencies. In the second session the focus turned to workout arrangements for troubled real estate loans and the various tools available to lenders, including forbearance and loan modification agreements, deeds in lieu and settlement agreements.
House Passes “National Right-to-Carry Reciprocity Act”
The United States House of Representatives passed the “National Right-to-Carry Reciprocity Act” (“Act”) by a vote of 272-154. The Act would require all states which issue concealed carry permits (“CCW”) to recognize CCW permits from all other states. In other words, under the Act, if a citizen of Nebraska has a Nebraska CCW, he or she can travel to California and California would have to allow him or her to carry in California.
The act would not change any existing state CCW laws besides laws relating to CCW permit reciprocity. Citizens from one state traveling to another state would still have to abide by all applicable state laws in the state they are visiting. Thus, under the previous example, hypothetically speaking, if California does not allow citizens to concealed carry in state parks but Nebraska does, a Nebraska citizen visiting California would still not be allowed to carry in a California state park.
Currently, the only states that do not allow concealed carry outside of the home or workplace are Illinois and the District of Columbia.
It is important to note that the Act still needs to pass the Senate and avoid a veto from the President before becoming law. If history serves as a guide, the Act will most likely not pass the Senate as a similar act was voted down in 2009.
Given the number of states that currently issue CCW permits, the Act could carry wides weeping ramifications both in nationwide firearms and federalism debates. Additionally, it may lead to some states tightening their existing CCW regulations.