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Saturday, July 13, 2019

Surveillance drones: Coming soon to Nebraska workers’ compensation?

Today's guest author is Jon Rehm, Esq. of the Nebraska bar.

Last summer Brody posted about the possibility of drone surveillance in workers’ compensation cases in Nebraska. Some new developments lead me to believe that drone surveillance of injured workers in Nebraska may be coming soon.

The first development is the fact that Amazon has patented its delivery drones for aerial surveillance. This technology is intended for home security but it could easily be transitioned for surveilling injured employees. Granted, technology companies tend to oversell their technological innovations, but Amazon plans on starting drone delivery by the end of this year.

I would assume that Amazon drones would be based at their fulfillment centers (warehouses). Amazon recently opened up a warehouse in Nebraska at the intersection of I-80 and Nebraska 370. (Amazon trucks and vans have proliferated in Lincoln recently) That location could make it easy to open up drone surveillance in metropolitan Omaha.

Some states have attempted to legislate against drone surveillance. But I suspect that providers of drone surveillance will argue that state laws regulating drone surveillance would be preempted by federal law. Though the issue hasn’t been addressed by the United States Supreme Court, a majority of jurisdictions have held that the Federal Aviation Act (FAA) preempts state workers’ compensation fee schedules that regulate air ambulance charges.

Could federal regulators step in to prevent drone surveillance in workers’ compensation cases? Even assuming that intervention would survive a court challenge, it would seem unlikely for now. The FAA is an agency of the Department of Transportation. The current Secretary of Transportation Elaine Chao previously served as Secretary of Labor in the George W. Bush administration. As Labor Secretary, Chao was not considered to be worker-friendly.

The best way to limit drone surveillance would be through federal legislation. That doesn’t seem likely so long as Elaine Chao’s husband remains Senate Majority Leader. (#draintheswamp) But again, if Amazon is going to be a provider of drone surveillance they are going to have bi-partisan clout to stop efforts limiting drone surveillance. Amazon already provides computing services to the Department of Defense.

But there is a federal election coming next year. If you are concerned about the weakening of workers’ compensation laws and the growing influence of Amazon, support candidates who share those concerns. (Veiled endorsements by Jon Rehm, do not represent the views of the firm or its other partners or support staff).