Cancer affects every part of patients’ lives, including their careers. The rigors of treatment can force someone to take time off and often hurts job performance. In the midst of a battle with cancer, a patient may need to take advantage of rights and protections for people with disabilities, including the federal Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Family and Medical Leave Act (FMLA).
- Contracting Hepatitis A in Public Venues
- Falls from Ladders: Who Is Liable?
- Does Workers’ Comp Cover Opioid Addiction Recovery?
- Pursuing a Wrongful Death Case After a Child’s Death
- Exposure to Dangerous Chemicals at Work
- Pushing Back Against Aggressive Insurance Claims Adjusters
- How Social Media Use Can Endanger a Workers’ Comp Claim
- Nighttime Risks to Las Vegas Pedestrians
- Severe Allergic Reactions to Employer-Provided Meals
- What to Do if Your Neighbor Keeps an Unsafe Dog
- December 2019 (1)
- November 2019 (4)
- October 2019 (3)
- September 2019 (5)
- August 2019 (5)
- July 2019 (21)
- June 2019 (19)
- May 2019 (22)
- April 2019 (23)
- March 2019 (21)
- February 2019 (19)
- January 2019 (20)
- December 2018 (19)
- November 2018 (20)
- October 2018 (22)
- September 2018 (21)
- August 2018 (23)
- July 2018 (21)
- June 2018 (22)
- May 2018 (22)
- April 2018 (20)
- March 2018 (21)
- February 2018 (19)
- January 2018 (25)
- December 2017 (25)
- November 2017 (17)
- October 2017 (3)
- September 2017 (12)
- August 2017 (6)
- July 2017 (7)
- June 2017 (11)
- May 2017 (11)
- April 2017 (7)
- March 2017 (9)
- February 2017 (11)
- January 2017 (12)
- December 2016 (13)
- November 2016 (14)
- October 2016 (12)
- September 2016 (13)
- August 2016 (11)
- July 2016 (13)
- June 2016 (11)
- May 2016 (9)
- April 2016 (5)
- March 2016 (7)
- February 2016 (5)
- January 2016 (6)
- December 2015 (10)
- November 2015 (10)
- October 2015 (6)
- September 2015 (12)
- August 2015 (8)
- July 2015 (11)
- June 2015 (6)
- May 2015 (6)
- November 2014 (4)
- October 2014 (9)
- September 2014 (4)
- July 2014 (4)
- June 2014 (5)
- May 2014 (13)
- April 2014 (5)
- March 2014 (5)
- February 2014 (6)
- January 2014 (4)
- December 2013 (1)
- November 2013 (1)
- October 2013 (1)
- June 2013 (3)
- May 2013 (2)
- March 2013 (2)
- February 2013 (4)
- September 2012 (3)
- August 2012 (3)
- April 2012 (10)
- March 2012 (8)
- December 2011 (6)
- September 2011 (5)
- July 2011 (1)
- June 2011 (3)
- May 2011 (2)
- April 2011 (4)
- March 2011 (4)
- February 2011 (1)
- Accident Lawyer
- Personal Injury
- Personal Injury Lawyer Las Vegas
- Product Liability
- Social Security Disability
- Workers Compensation Attorney Las Vegas
- Wrongful Death
Going back to work after having a baby is one of the most challenging parts of being a new mom. Feelings of guilt and sadness can combine with exhaustion to make working a real challenge. Lactation adds a practical challenge for working moms, especially when there aren’t good places to pump. New mothers in Nevada should know that state law requires employers to provide certain accommodations for women who are lactating. The Nevada Pregnant Workers’ Fairness Act (the Act) went into effect in 2017. The Act has two important components relevant to new moms. First, it requires employers to provide accommodations for matters related to pregnancy and childbirth, including lactation. Second, it protects pregnant women and women who have recently given birth from discrimination based on those accommodations.
Employers must provide reasonable accommodations for lactating mothersUnder Section 5 of the Act a Nevada employer may not refuse to provide a reasonable accommodation upon the employee’s request for any condition relating to pregnancy, childbirth, or a related medical condition (explicitly including lactation), unless the accommodation would impose an undue hardship on the business of the employer. There are several features worth noting about this rule:
- The employee must request the accommodation. An employer is not obligated to preemptively create a solution, though of course many employers do.
- The employer is required to enter into a dialogue. The employer and employee “must engage in a timely, good faith and interactive process to determine an effective, reasonable accommodation for the employee.”
- The accommodation must be “reasonable.” The Act explains that an accommodation may include a change in the work environment or methods of working to allow the employee to have employment opportunities equal to those available to other employees. The Act gives several examples of what a “reasonable accommodation” might be, including revising break schedules, providing an area other than a bathroom for expressing breast milk, or providing a modified work schedule. If the employee asks for a reasonable accommodation and the employer refuses, it becomes the employer’s responsibility to prove that providing the accommodation would be an “undue hardship” for the employer. This might involve showing that the accommodation is too expensive or could affect the employer’s operations.
Discriminating against lactating employees is unlawfulThe Act provides that the following acts by an employer are unlawful:
- Refusing to provide reasonable accommodation for lactation, unless the accommodation would be an undue burden.
- Using the fact of the employee’s lactation, or an employee’s refusal to accept accommodations offered by the employer, to take an adverse employment action, such as reducing pay, imposing a difficult new schedule, or changing the job in a negative way.
- Denying an employment opportunity on the basis that the employee refused an accommodation or is lactating.
- Requiring an employee to take leave.
- Requiring an employee to accept an accommodation she didn’t request or chooses not to accept.
Talk to an attorney if you have questionsThe attorneys at Greenman Goldberg Raby Martinez provide personalized, caring guidance to clients in the Las Vegas area. If you are a new or expecting mother we are happy to explain how Nevada law protects you. For a no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.
Social media use is getting some firefighters into professional trouble. A Boston firefighter was placed on leave last year after posting racially charged, violent material on Facebook. His incendiary posts raise questions about his fitness to serve the public and expose his department to public criticism. They are just one example of mistakes a firefighter can make when posting online.
Employers can fire employees for social media useEmployees in every industry are finding out the hard way that employers are able to fire them for what they post on social media, even in channels that they believe are private. Unless a firefighter is working under a contract, chances are good that his or her employment is “at-will.” That means that an employer often can fire an employee at any time, with or without cause. In the right situation a firefighter’s social media posts may give the department “cause” to terminate the employment relationship. Bear in mind that even though employers can show interest in an employee’s social media accounts, they cannot require employees to disclose their login credentials as a condition of employment. NRS 613.135. This arguably prevents employers from requiring their employees to give them access to their private social media feeds (i.e., as “friends” on Facebook). However, a firefighter could voluntarily accept a connection with a manager or other colleagues and effectively waive any expectation of privacy. Firefighters should know that the National Labor Relations Act (NLRA) provides that employees cannot be fired in retaliation for using social media to organize and discuss job-related issues. Complaints about job conditions, including issues with managers, enjoy greater leeway than other kinds of potentially unacceptable content. But care should be taken to keep such posts professional.
Kinds of posts that should be avoidedThere are many kinds of social media posts that could get a firefighter into trouble. Many of them are simply common sense. Here are some examples:
- Posts that breach confidentiality obligations. Firefighters have confidentiality obligations with regard to members of the public as well as internal department matters. For example, posting photos of a fire scene is potentially actionable, especially if the photos include members of the public.
- Posts that show evidence of illegal or discouraged activity. It almost goes without saying that a firefighter should not post photos of himself or herself doing something illegal, like using prohibited drugs. Even posting material that expresses a positive opinion of such things can create problems. In Nevada firefighters need to be especially cautious now that recreational marijuana has been decriminalized: even though marijuana use is no longer a state criminal offense, its use by firefighters is still subject to employer restrictions.
- Posts that violate department policy. Firefighters should be familiar with the policies that govern their social media use. For example, most fire departments prohibit unapproved use of official uniforms and insignia for unofficial purposes.
- Posts that may be offensive. As public servants firefighters have an obligation to avoid making racially or sexually inappropriate comments on social media and elsewhere. Whether content is offensive isn’t necessarily up to the firefighter. Assume that content will be judged by a wide audience, and that it may reflect poorly upon the employer even though it is not posted in an official capacity.
GGRM serves the Las Vegas firefighting communityGreenman Goldberg Raby Martinez is proud of its long history of service to the Las Vegas first-responder community. If you are a firefighter with questions about your social media use, please reach out to us. For a free attorney consultation, call us at 702-388-4476 or send us a request through our site.
Employers are increasingly including mandatory-arbitration clauses in the agreements employees sign after being hired. The clauses are designed to prevent employees from filing lawsuits against their employers for just about any kind of employment-related issue, from unpaid overtime to unlawful discrimination and wrongful termination. Instead of going to court, employees are required to submit disputes to a private arbitrator. Because our legal system favors freedom of contract, an employee who is subject to a mandatory-arbitration clause may have no option but to comply. For employees the arbitration process can offer some benefits when compared to litigation, but it has a range of potential problems that make it a mixed blessing.
Arbitration has some advantages over ordinary litigation . . .Arbitration can be thought of as a “light” form of litigation. Like litigation, lawyers usually represent both sides in the dispute, there are rules governing what can be used as evidence, and there are rules of procedure that in theory ensure that both sides receive a fair hearing. For employees, arbitration has two main benefits over litigation: it tends to be faster and cheaper. The backlog in our court system means a new case can take years to resolve, while an arbitration firm tends to not have the same bandwidth problem. And because the rules are simpler and the process less formal, attorneys’ fees and other costs tend to be lower.
. . . but many disadvantages.For an employee the downsides of arbitration can be significant. Here are just a few of the issues:
- No option to appeal. A typical arbitration clause will provide that the results of the arbitration are binding and can’t be appealed to the courts. An employee who isn’t satisfied with the outcome of binding arbitration may have no right to appeal the decision.
- One reason employers favor private arbitration is the secrecy of the process. The results of private arbitration typically are confidential, and quite often the employee is bound by an obligation to keep the results secret as well. In cases involving unlawful discrimination or sexual harassment, one can see how a confidential process benefits the employer at the expense not only of the individual employee bringing the complaint, but potentially many other employees as well.
- Unequal power. Litigation tends to balance the inherently unequal employer-employee relationship, by giving both sides equal rights before the law. Private arbitration doesn’t always meet the same standard. Some arbitrators may have an incentive to favor employers, because an employer will continue to use an arbitrator that it thinks will take a more favorable view of the employer’s side. This problem has been well documented.
GGRM is a Las Vegas law firmThe attorneys at the law firm of Greenman Goldberg Raby Martinez are proud to serve working people in the Las Vegas area. If you are in a dispute with your employer and have questions about how a mandatory-arbitration clause affects your rights, we would be happy to talk to you about your options. For a free attorney consultation call us today at 702-388-4476 or ask us to reach out to you through our contact page.
Some employers, especially in the health care industry, have started requiring their employees to get annual flu shots. Even though the flu vaccine has a lot of benefits both for the patient and the population at large, some people can experience serious side effects. These range from fever and nausea to allergic reactions and, in rare cases, serious conditions like Guillain-Barré syndrome. An employer mandate can feel unfair for employees who are concerned about the risks of vaccines or object to them on religious grounds. But if an employer terminates an employee for refusing to comply with a mandatory vaccine policy, does the employee have legal recourse?
At-will employment gives employers leewayNevada is an at-will employment state, which means that an employer ordinarily can terminate an employee with or without cause. There are exceptions to this general rule for employees who work under a contract, such as collective bargaining agreements, where the terms of the contract will override the default, at-will rule. But absent an arrangement that spells out when and how an employee can be fired, an employer is free to terminate an employee at any time. Failure to comply with a condition of employment, such as a requirement that all employees get the flu vaccine, may give an employer cause for firing an employee. For the employee, being fired for cause could have consequences beyond just losing the job, such as affecting eligibility for retirement benefits. As a consequence, an employee who objects to a mandatory vaccine may be placed in a difficult position.
Responses to a mandatory flu vaccineEmployees who object to their employers’ mandatory vaccine policies have started taking the issue to the courts, either directly or with the help of the U.S. Equal Employment Opportunity Commission (EEOC). These cases have raised several potentially strong legal arguments in favor of employee choice:
- Disability. An employee who can show that a vaccine may have negative side effects related to an existing disability may have a good argument that the employer must grant a reasonable accommodation under the Americans with Disabilities Act (ADA).
- Pregnancy. A pregnant employee may be able to refuse a vaccine on grounds that other employees have been granted exceptions for other medical reasons. The federal Pregnancy Discrimination Act prohibits unequal treatment of pregnant employees on the basis of their pregnancy. Pregnant employees may also qualify for disabilities under the ADA in some circumstances, such as if they are suffering from gestational diabetes.
- Religious convictions. An employee with sincerely-held religious beliefs that prohibit the use of vaccines may be entitled to reasonable accommodations under Title VII of the Civil Rights Act of 1964, so long as the accommodation does not present an undue hardship to the employer. Note that Title VII does not apply to purely secular objections, such as those based on particular scientific studies or non-religious personal convictions. See Fallon v. Mercy Catholic Med. Ctr., 977 F.3d 487 (3rd Cir. 2017).
- Privacy. Under the federal Health Insurance Portability and Accountability Act (HIPAA) most types of health care provider are required to keep confidential the health records of their patients. Employers are only entitled to such information in limited circumstances. In many situations, the administration of a flu vaccine in the workplace, such as by a third-party contractor, will fall outside HIPAA, but under the right circumstances a health care provider advising an employer that an employee refused a vaccine could violate the employee’s HIPAA rights.
GGRM serves the Las Vegas communityFor over 45 years the attorneys at Greenman Goldberg Raby Martinez have helped clients in the Las Vegas area protect their legal rights and recover compensation for injuries they have suffered. If you have lost your job for refusing to comply with a mandatory vaccination policy and would like to understand your legal options, call us today for a free attorney consultation at 702-388-4476, or request a call through our website.
Committing fraud in connection with Nevada’s workers’ compensation system is a crime. Anyone in the system can potentially commit fraud. Conviction can carry hefty financial penalties, jail time, and the long-term consequences that come with a felony on one’s record. The state attorney general’s Workers’ Compensation Fraud Unit investigates suspected cases.
Injured workers must avoid committing applicant fraudA worker who behaves dishonestly to get workers’ compensation benefits may be committing applicant fraud. Applicant fraud includes things like faking injuries, lying about pre-existing conditions, trying to pass off an injury suffered at home as work-related, or continuing to work while receiving disability wages. Workers sometimes think they can get away with these things because they are small fish in a big pond. But insurers vigilantly defend themselves against claims fraud and won’t hesitate to report suspicious activity. Bear in mind that criminal fraud requires an intentional act to deceive. Mistakes on a form or forgetfulness during a physician evaluation don’t rise to the level of fraud unless a worker decides not to correct the problem once it’s discovered. Also remember that the no-fault nature of workers’ compensation means that an injury suffered while working is covered regardless of whether the employee’s negligence caused the injury. It’s important to tell the truth about what caused the injury; lying to hide mistakes may not only threaten a fraud charge, it may also place one’s coverage at risk.
Insurers and health care providers can commit fraud, tooAn insurer or doctor’s office can commit fraud as well. Insurers commit fraud by deliberately undermining a worker’s claim to avoid costly payouts. Of course, an insurer will often work hard to find excuses to deny claims, and once it finds a defensible rationale it will reduce or eliminate an injured worker’s benefits with the expectation that the worker will not have the resources to fight the decision. Sharp business practices, by themselves, aren’t fraud. Like applicant fraud, insurer fraud requires a deliberate, dishonest act. A health care provider can also commit fraud to rack up unwarranted fees. It can do this in a variety of ways, many of which will be invisible to the worker (lying on reimbursement forms, for example) while others may give the worker reason to be suspicious (ordering unnecessary treatments or dragging treatment on well after the incident). Workers must take care not to become part of a fraudulent scheme by an insurer or health care provider. Paying attention and asking questions can go a long way toward avoiding becoming a part of a criminal enterprise. If something doesn’t seem right, don’t hesitate to reach out to the attorney general’s office or consult with a personal lawyer.
Workers are not aloneThe law firm of Greenman Goldberg Raby Martinez represents workers’ compensation clients in the Las Vegas area. If you think you may be the victim of workers’ compensation fraud and would like to talk to an attorney about your legal options, we are happy to help. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page.
Nevada law has allowed the use of marijuana for medical purposes since 2001. Holders of valid, state-issued medical marijuana identification cards have certain rights beyond those of users under the state’s law decriminalizing recreational use. Among these are certain protections in the workplace, but these protections have important limits. Nevada law requires employers to “attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana.” NRS 453A.800. The statute provides that an accommodation needn’t be made if it poses a threat of harm to people or property, imposes an undue hardship upon the employer, or would prevent the employee from completing his or her job responsibilities. Unlike the Americans with Disabilities Act (ADA) and other laws that require employers to make reasonable accommodations for protected traits, Nevada’s medical marijuana law requires only that employers “attempt” to make such accommodations. Between the “reasonable business purposes” exception and the “attempt” proviso, an employer has ample room to fire an employee after only a half-hearted effort to find a workable accommodation. This may mean that an unscrupulous employer might fire an employee after engaging in an empty, bad faith compliance exercise. Employees fired in this circumstance needn’t accept it. There are other significant limits to an employer’s obligations to accommodate an employee’s medical marijuana use. Employers are not required to allow the use of medical marijuana in the workplace. And an employer is also not required to modify a job or an employee’s working conditions if they are based upon the employer’s reasonable business purposes. Though a “reasonable accommodation” might be to allow an employee to use marijuana in a designated spot, an employer might conclude that an employee’s job isn’t compatible with being under the influence. These are close questions. Some employers are likely to be more accommodating than others. Bear in mind that federal law still outlaws the use of marijuana for any purpose. Even though state laws permit medical use, federal laws that address healthcare rights don’t extend to marijuana. Federal antidiscrimination laws like the ADA therefore do not protect workers from being fired solely because they use marijuana to treat a medical condition. On the other hand, an employer might still violate the ADA if it uses an employee’s medical marijuana use as a pretext to discriminate against a protected disability. Given the conflict between federal and state law, marijuana has an awkward legal status that creates ambiguities for employers and their employees who use it to treat medical conditions. An employee who gets fired due to medical marijuana use should consult with an attorney to explore whether the termination was wrongful. The law firm of Greenman Goldberg Raby Martinez defends the legal rights of clients in the Las Vegas area. Call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.
Major data theft has become a fact of life in the digital age. When an employer suffers a security breach and loses sensitive information about its employees, employees can face long-term problems with identity theft and violated privacy. But does a Nevada employer face legal liability to its affected employees when such a breach occurs? The law is unclear.
Distinguishing between deliberate disclosures and unlawful data breachesEmployers are required to maintain the confidentiality of a wide range of employee information. For example, under federal and state law, health records must be scrupulously kept apart from other information, with access limited only to appropriate individuals. Employees are entitled to an expectation of privacy regarding other records as well. An employer shouldn’t leave documents with wage information lying around for anyone to look at. These kinds of restrictions generally prohibit deliberate disclosures of information. In the context of a data breach, in which an outside actor unlawfully breaks into a company’s computer system and steals information, the employer has not deliberately disclosed anything. An employee whose information is stolen must rely on a different theory to recover compensation. One possibility is negligence.
An employer’s duty to protect employee information from theftCases addressing this question have thus far shown that proving negligence can be a challenge for employees affected by data breaches. Among other things, proving negligence requires a plaintiff to show that a defendant breached a legal duty of care, and as a consequence caused the plaintiff to suffer a compensable loss. In Castillo v. Seagate Tech., LLC, 2016 U.S. Dist. LEXIS 187428 (N.D. Cal. 2016), employees sued an employer for negligence after the employer disclosed W-2 information to a third party that requested it using a malicious phishing scheme. The hackers used employee data to file fraudulent tax returns. Significantly, the court held that the employer owed its employees, together with their spouses and dependents, a legal duty to protect their personal information against foreseeable attempts to steal it. But the court went on to find that many of the employees in the case hadn’t shown that they’d suffered compensable damages as a consequence of the employer’s breach of duty. In short, even though the company owed its employees a duty to prevent theft of their personal information, the employees couldn’t sue for negligence without showing that the theft resulted in real costs. It’s not clear whether a Nevada court would follow the logic of Castillo to impose a similar legal duty upon employers to protect employee records. Courts elsewhere have not imposed such an obligation under similar circumstances. For example, in Dittman v. UPMC, 154 A.3d 318 (Sup. Ct. Pa. 2017), a Pennsylvania court held that an employer had no legal duty to protect electronic records against an attack unless the likelihood of such an attack was well understood, for example because the employer had suffered a similar attack in the past.
Talk to an attorney if your information has been stolenTalking to an attorney is an important step for employees who have had their personal information stolen from an employer’s systems. The attorneys at Greenman Goldberg Raby Martinez provide personalized, caring guidance to clients in the Las Vegas area. We are happy to explain your legal options for seeking compensation after an employer data breach. For a no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.
Working in an environment that is not ergonomically designed can lead to long-term health problems. Issues like carpal tunnel syndrome, bursitis, and strained muscles can take years to resolve and can require surgery. Nevada employers are not specifically mandated to provide ergonomic workplaces, but a combination of safety regulations and financial incentives gives them good reason to take ergonomics seriously.
OSHA and ergonomics in NevadaThe “general duty clause” of the federal Occupational Safety and Health Act (OSHA) and the equivalent state law requires employers to provide a workplace that is “free from recognized hazards that are causing or likely to cause death or serious physical harm” to employees. 29 U.S.C. §654, NRS 618.375. The Occupational Safety and Health Review Commission, which adjudicates disputes arising from enforcement of federal OSHA standards, has held that ergonomics problems can be a “recognized hazard.” Pepperidge Farm, Inc., 1997 OSHARC LEXIS 40 (No. 89-265, 1997). Because bad ergonomics can lead to enforcement actions by state and federal OSHA agencies, employers have good reason to adopt policies to encourage healthy practices, provide ergonomics evaluations, and upgrade work spaces to reduce the risk of repetitive motion injuries. The state has adopted an instructive set of guidelines to improve workplace ergonomics for its own employees.
The cost of ergonomics-related injuriesBesides concerns about OSHA compliance, employers also have good financial reasons to improve the ergonomics of their workplaces. In addition to potentially losing productivity due to injuries, an employer may also face other kinds of costs, including:
- Higher workers’ compensation premiums. An employee who suffers an on-the-job injury that requires medical care is entitled to workers’ compensation benefits. When workers make claims an employer’s insurance costs can go up.
- Disability law compliance. When an employee’s work-related injuries lead to temporary or total disability, an employer becomes responsible for providing the employee with reasonable accommodations that account for the disability. This might include offering the employee light duty, or moving the employee to another role. In addition to being expensive, these changes can be disruptive to the workplace.
Nevada workers who are injured at work are sometimes surprised to learn that state law prevents them from suing their employers for personal injury. Under the Nevada Industrial Insurance Act (NIIA), NRS 616A.005 et seq., an employee’s exclusive remedy for injuries at work, including death, is to file a workers’ compensation claim. NRS 616A.020. There are two exceptions where an employee may still be able to sue: cases where an employer lacks the required workers’ compensation insurance, and cases where the employer intentionally hurts an employee.