Q&A With Senior Partner Matt Funk: Mandatory Arbitration, Sexual Harassment Legislation, Scaffolding & More

Senior Partner Matt Funk

Matt Funk is the president of the New York State Trial Lawyers Association and is a senior partner at Pasternack Tilker Ziegler Walsh Stanton & Romano. The New York Law Journal recently asked Funk to share his opinions on the U.S. Supreme Court’s recent decision on employment contracts and new laws on sexual harassment and scaffold protection.

Q: Do you think the Supreme Court’s recent decision that employment agreements that ban class actions do not violate federal labor laws will have an impact on workers?

A: The Supreme Court decision is a blatant misinterpretation of labor rights that will ultimately harm workers across the country. Individual workers typically lack the resources to take on major corporations by themselves. Through class-action lawsuits, workers can join together to hold negligent employers and bad actors accountable.

By allowing employers to strip this fundamental right away from workers, the Supreme Court is forcing victims to take reported violations to paid third-party arbitrators, usually from an arbitration firm chosen by the employer, which creates a strong potential for bias. It removes the dispute-resolution mechanism from an independent court, and places it into the hands of decision-makers in the pockets of the accused party, making it difficult to hold employers responsible for misconduct and labor violations.

Q: When did mandatory arbitration clauses really become so entrenched in the agreements and contracts that consumers regularly encounter?

A: Mandatory arbitration clauses have their roots in the Federal Arbitration Act, a law passed in 1925 that granted businesses the ability to resolve disputes outside of the courtroom through third-party arbitrators. The law was designed for business-to-business transactions but over the past 30 to 40 years, the courts have made it easier for corporations to include these clauses in contracts where the individual consumer or employee has no real power to change the contract terms. Eventually, these clauses became par for the course, often cloaked in legalese unrecognizable to the untrained eye.

Consumers often overlook these clauses, unaware of how their rights are being limited until it’s too late to avoid them or take action. The only way to level the playing field, and make sure corporations take consumer safety seriously, is to ban mandatory arbitration clauses in employment and consumer contracts.

Q: What is the association’s reaction to recent sexual harassment legislation passed and signed into law in New York City?

A: The legislation is a major step in the right direction, at a critical moment in the fight for gender equality. Over the past year, women across the country have shared their experiences in the workplace, demonstrating how institutions have reinforced sexism to physically harm and intimidate women, discourage their ambitions, prevent career advancement, and create hostile workplaces.

The City Council recognized that it was imperative to do more than just listen—they needed to act and do something to change the status quo. The legislation will help ensure that all managers and employees are properly trained and educated, creating a foundation for institutional reform that reverberates across businesses and organizations of all stripes in New York City.

Q: I know the association has taken a position on the Scaffold Safety Law in New York. What are the concerns?

A: It’s no secret that construction work is one of the most dangerous jobs in New York. In 2016 alone, 71 construction workers in New York State died in on-the-job incidents, the highest total we’ve seen since 2002. The Scaffold Safety Law is a much-needed source of justice and accountability that is essential to protecting workers and making safety paramount.

Given the risks involved, it’s up to owners and general contractors who have ultimate control over the work site to create a secure working environment, by following safety guidelines and providing proper equipment. When owners and general contractors ignore basic rules and fail to provide adequate gear, they put workers at risk and create tragedies out of sheer negligence and disregard for their employees’ lives.

The Scaffold Safety Law offers workers and their families a way to hold negligent owners and general contractors accountable. In instances where workers are seriously injured or killed as a result of unsafe working conditions, their families are forced to take on the costs of lost wages, medical bills and other impacts that are not adequately covered by workers’ compensation, not to mention the physical and emotional pain that results. The Scaffold Safety Law can help mitigate the financial stresses and devastation facing victims and their families, while delivering them justice. At the same time, it insists that owners and contractors follow safety guidelines and promote worker safety so workers can return home to their families at the end of a hard day’s work.

Q: You’re nearing the end of your term as NYSTLA president. What achievements are you most proud of?

A: Over the last year, I’m particularly proud of NYSTLA’s leadership in expanding and strengthening the legal rights of everyday New Yorkers. Working with a broad network of affected residents and families, advocates, and legislators, NYSTLA has been able to achieve legislative and regulatory victories that deliver justice and practical, meaningful results.

In January, Lavern’s Law was enacted, establishing legal rights for patients harmed by negligent failure to diagnose cancer or a malignant tumor by changing the statute of limitations to reflect the date of discovery. And in 2017, legislation was passed that expands access to SUM auto insurance, promoting better insurance coverage for drivers. Elsewhere on the road, we successfully fought for the implementation of a regulatory framework for ride-share services that is the best in the nation when it comes to protecting consumers, including proper insurance coverage. Not to be forgotten, we also reinforced victims’ legal rights through a bill that allows lawsuits to proceed in the same county where the violation occurred. And, finally, as a workers’ compensation attorney, I am particularly proud of our success working with the labor movement to beat back harmful changes that were proposed that would have gutted the workers’ compensation system.

At the same time, NYSTLA has continued to help young lawyers develop professionally and gain the knowledge they need to make a significant impact through a continuing legal education program that has repeatedly been voted the best in the state.

We believe in leading by example, and our efforts this year serve as a reminder of how the legal community can make a difference on behalf of the public interest.

Prior results do not guarantee outcomes.
Attorney Advertising.

Congratulations to Edgar Romano, New President of Society of New York Workers’ Compensation Bar Association

Managing Partner Edgar Romano

On May 17th, Managing Partner Edgar Romano was installed as the new President of the Society of New York Workers’ Compensation Bar Association (NY WCBA). Prior to his installation as President, Edgar served as NY WCBA’s 1st Vice President.

The NY WCBA was established in 1945 as a bipartisan organization comprised of attorneys representing all parties to workers’ compensation claims: claimants, self-insured employers, third party administrators, insurance carriers, and others who are affiliated with the New York State Workers’ Compensation system. The purpose of the organization is to identify issues that affect the administration of the Workers’ Compensation Law and attempt to offer suggestions for the remediation of these issues in a fair and impartial manner. In addition, the Association is involved in educating persons unfamiliar with the complexities of the Workers’ Compensation Law.

The Association is also involved in fund raising for charity. This year represents the Association’s 17th annual golf and tennis fund raiser for pediatric cancer research on behalf of the Memorial Sloan Kettering Cancer Center. Through the generosity of its members and sponsors, the Association has raised over $500,000 since the inception of its annual outing.

Congratulations from all of us!

Prior results do not guarantee outcomes.
Attorney Advertising.

Veterans Can Be Eligible For Full Or Partial Disability Benefits

(U.S. Air Force photo/Staff Sgt. Desiree N. Palacios)

Veteran’s disability is a monetary benefit that is paid to veterans who have disabilities incurred or aggravated during active service in the military. Benefits may also be awarded for post-service disabilities if the disability is deemed related or secondary to disabilities occurring during active service.

This tax-free benefit is paid monthly if the veteran is deemed to be at least 10% disabled. The amount of compensation is determined by the degree of disability from 10% to 100%.

Other eligibility requirements include the status of your discharge, duration of service, as well as the degree of your disability.

If you believe that yourself or a loved one should be entitled to Veterans Compensation Benefits, or if you believe you are more disabled than Veterans Affairs has previously determined, contact Pasternack, Tilker Ziegler, Walsh, Stanton & Romano, LLP for a free consultation.

Prior results do not guarantee outcomes.
Attorney Advertising.

Social Security Disability – Know When To Submit Medical Records Before Your Hearing

The timeline for you or your attorney to submit evidence of your disability to the Social Security Administration (SSA) recently become much shorter.

In May of 2017, the SSA implemented a new rule on submitting evidence. If you want the judge to look at any new medical records, they must be submitted at least 5 business days before your hearing. If you miss the deadline, the judge can now legally ignore the new evidence, no matter how important it is.

Before this new rule, the SSA’s disability judges were required to consider all medical evidence of your disability before they could decide your case, no matter when it was submitted or where it came from. This burden was very high — the SSA was even required to try to take action to find proof on its own. Under the new 2017 rule, if your new evidence is important but wasn’t turned over at least 5 business days before the hearing, you may have to prove that there were some “unusual, unexpected, or unavoidable circumstances beyond your control [that] prevented you from informing [SSA] about or submitting the evidence earlier.”

Know your rights!  This new rule also means that Social Security has to give you at least 75-day notice before your hearing. Unfortunately, we law firm have also seen Social Security sending people forms asking them to waive their right to this notice. If you receive a form asking to waive your rights, consult with an attorney before signing anything. We are provide free consultations.

Prior results do not guarantee outcomes.
Attorney Advertising.

Congratulations to Pasternack Tilker Attorneys Recognized As 2018 Super Lawyers

We are proud to congratulate each of Victor PasternackJordan ZieglerKevin WalshCatherine Stanton, and Edgar Romano for being named to the New York Super Lawyers list as one of the top attorneys in New York for 2018. No more than 5 percent of the lawyers in the state are selected by Super Lawyers.

This is the 13th consecutive year Ziegler has been selected, the 12th consecutive selection for Stanton, the 10th for Pasternack, the 9th for Romano and the 5th for Walsh.

We are honored that so many of our attorneys have been a recurring presence on this prestigious list for over a decade.

Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. The first Super Lawyers list was published in 1991.

Prior results do not guarantee outcomes.
Attorney Advertising.

Injured? Don’t Wait To Report It

The New York Worker’s Compensation Law is a no-fault system that provides medical and monetary benefits to any worker injured while on the job. Though the threshold for establishing a worker’s compensation claim is not high compared to standards in other areas of the law, there are a few important things every injured worker should know. Claims can be rejected because too much time has passed (time-barred), so it’s important to report your injury to your employer and file a claim as soon as possible after the injury occurs.

Under New York law, an injured worker has two years after the date of their accident to file a claim with the Worker’s Compensation board. In the case of an occupational disease that is due to the nature of the job (like carpal tunnel syndrome), the worker has two years from the date that they knew or should have known that their injury was sustained in the course of employment. While two years may seem like a lot of time, many seemingly minor injuries can become much more serious down the line, so to protect yourself it’s important to file a claim as soon as possible after the injury occurs.

The law also requires that employers have adequate notice of the injury. For accidental injuries, the worker must notify their employer about the injury within thirty days of the accident. For an occupational disease, the time limit is relaxed to two years from the date that the worker knew or should have known that the condition was caused by their work activities. Adequate notice can either be oral or written, so even just telling your supervisor that you had an injury on the job is good enough. However, to prevent this from becoming an issue it’s best to fill out an accident report or to provide your employer with some form of written notice of your injury as soon as possible.

Though most claims will need to be reported and filed within these time frames, there are certain exceptions that may apply. If you have any questions about a work injury or how to properly file a claim, reach out to us for a free consultation.

Prior results do not guarantee outcomes.
Attorney Advertising.

Don’t Go It Alone

An injured worker walked through my door the other day frustrated beyond belief. He had been representing himself on his compensation claim for his back injury. He thought he did not need a lawyer and could handle it himself.

The insurance company accepted the claim and paid this worker only a fraction of what he was actually entitled to, though that was not the issue the client wanted to discuss. He did not even realize that he had been short changed.

What he wanted to discuss was getting back surgery. His doctor requested a laminectomy, but the insurance company told the doctor and the injured worker that they were not going to authorize it or pay for it. This man had been suffering terrible back pain for nearly six months and his surgery was never scheduled.

The injured worker was shocked when I told him that the insurance company did not have to give authorization — this surgery was already authorized under the Board’s Medical Treatment Guidelines. The insurance company knew this of course, but seemingly played ignorant to avoid paying for the needed surgery.

When I then told him that he could not only have his surgery, but also had been paid less than half of the indemnity payments to which he was entitled, the gentleman shook his head in frustration and said, “I shouldn’t have done this alone.”

How right he was. The New York Workers Compensation system is extremely complicated. Insurance companies know the system well and often do not tell unrepresented injured workers details that matter, often while telling the injured worker that they are acting in their best interest.

Do not go it alone.  At Pasternack, Tilker, Ziegler, Walsh, Stanton, and Romano, with more than eight decades of experience in defending the rights of New Yorkers, we help clients get the justice they deserve.

Prior results do not guarantee outcomes.
Attorney Advertising.

Injured Volunteer Firefighters And Ambulance Workers May Be Eligible For Benefits

New York workers are generally covered by the Workers’ Compensation Law, but there are special laws which cover volunteer first responders – firefighters and ambulance workers.

Closely aligned with the Workers’ Compensation Law are the Volunteer Firefighter Benefits Law (VFBL) and the Volunteer Ambulance Workers Benefit Law (VAWBL). As their titles suggest, these two laws protect people who volunteer in the potentially hazardous duties of fighting fires, responding to motor vehicle accidents and tending to those injured in a variety of circumstances. While not all firefighters and ambulance workers are unpaid, many areas outside the five boroughs of New York City and other smaller cities maintain volunteer forces to provide these indispensable services. Given the inherent danger involved, volunteers often suffer injury when “on duty”.

In the event of an injury, both laws provide wage replacement benefits and medical coverage. Also, there is a “built in” presumption of an earning capacity for volunteers; therefore, even if a volunteer is not otherwise employed, she or he may be entitled to benefits. In addition to physical injury, the laws cover such events as exposure to noxious fumes, smoke or chemicals and post-traumatic stress disorder.

The list of what entails an “injury in the line of firematic or ambulance worker duty” is extensive. These events include maintaining vehicles and participation in certain department-sanctioned events. We take pride in representing those who volunteer their efforts in the service of others, especially when those efforts can be fraught with danger.

In order to best insure that your rights are protected, be sure to contact our office for a no-cost consultation. And thank you for volunteering!

Prior results do not guarantee outcomes.
Attorney Advertising.