Compensation for workplace injury discrimination proposed

The Business and Labor Committee heard testimony March 10 on a bill that seeks to provide a legal pathway for employees who experience discrimination as a result of a workplace injury.

LB361, introduced by Lincoln Sen. Danielle Conrad, would prohibit discrimination or retaliation under the Nebraska Fair Employment Practice Act against an individual who reports, brings a claim or seeks remedies for a work-related injury through the Nebraska Workers’ Compensation Act.

The bill also would provide for the right to a jury trial in civil actions brought under the act.

Conrad said the proposal was introduced in response to a recent Nebraska Supreme Court case, which found that an individual who receives compensation for a workplace injury through the Nebraska Workers’ Compensation Act cannot pursue additional compensation under the Nebraska Fair Employment Practice Act for discrimination by their employer as a result of the same injury.

“The court [invited] legislative remedy and additional legislative action,” she said. “That is what I am taking up … with this measure.”

Speaking on behalf of the Nebraska AFL-CIO, John Corrigan testified in support of LB361, saying current law allows for discrimination against certain disabled individuals.

An employee who is discriminated against because of a disability can sue their employer under the Nebraska Fair Employment Practice Act, Corrigan said, but an employee who is disabled as a result of a workplace compensation incident does not have the same legal recourse.

“[Employees] should not give up legal rights because they got hurt in a work accident,” he said.

Jennifer Turco Meyer, president-elect of the Nebraska Association of Trial Attorneys, also testified in support of the bill. There are workers in Nebraska with legal protection against discrimination but no way to achieve a resolution for those incidents under current law, she said, and LB361 would fix that.

Phoebe Lurz, assistant attorney general in the civil litigation bureau of the Nebraska Attorney General’s Office, spoke in opposition. She said the proposal would be a “deep deviation” from the compromise between employers and employees represented by the Nebraska Workers’ Compensation Act.

Under the act, Lurz said, employers assume automatic liability in exchange for cost certainty of benefits while employees give up their right to a common law verdict in exchange for no-fault benefits. She said LB361 essentially would negate the intent of that compromise.

Lurz also said employees who file successful workers’ compensation claims receive substantial benefits, including loss of earnings compensation, temporary and permanent disability benefits, vocational rehabilitation services and compensation for medical expenses.

“[LB361] allows employees to recover twice for injuries that occur in the course and scope of their employment and would subject the state and taxpayers to being held financially responsible for the same injury and … damages twice.”

The committee took no immediate action on the proposal.