Author Archives: Matthew Funk

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.
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Post-traumatic Stress ‘in 1300BC’

Today’s post comes from guest author Kit Case, from Causey Law Firm.

Evidence of post-traumatic stress disorder can be traced back to 1300BC – much earlier than previously thought – say researchers.

The team at Anglia Ruskin University analysed translations from ancient Iraq or Mesopotamia.

Accounts of soldiers being visited by “ghosts they faced in battle” fitted with a modern diagnosis of PTSD.

The condition was likely to be as old as human civilisation, the researchers concluded.

Prof Jamie Hacker Hughes, a former consultant clinical psychologist for the Ministry of Defence, said the first description of PTSD was often accredited to the Greek historian Herodotus.

Referring to the warrior Epizelus during the battle of Marathon in 490BC he wrote: “He suddenly lost sight of both eyes, though nothing had touched him.”

His report co-authored with Dr Walid Abdul-Hamid, Queen Mary College London, argues there are references in the Assyrian Dynasty in Mesopotamia between 1300BC and 609BC.

Ghosts

In that era men spent a year being toughened up by building roads, bridges and other projects, before spending a year at war and then returning to their families for a year before starting the cycle again.

[Read the rest of the article here…]

 

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Did a Local Manufacturer Violate Federal Law with a Sudden Layoff?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Employees at the Store Kraft plant in Beatrice, Neb., were stunned to find out on Monday morning that Monday would be their last day on the job. Such short notice may be against federal law and entitle the laid-off workers to back pay and benefits for up to 60 days.

Under the WARN Act (Worker Adjustment and Retraining Notification Act), employers of more than 100 employees are required, in most instances, to give workers 60 days of notice in the event of a plant closing or a mass layoff.

Press coverage of the plant closing appears to show that Store Kraft is roughly at 100 employees. If Store Kraft had more than 100 employees, then it is very possible that their former employees may have a case under the WARN Act. The closing of the Store Kraft factory is devastating for its workers and hurtful to Beatrice and the surrounding community, but former workers may have a claim against Store Kraft for the abrupt manner in which the employer shut down the plant.

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Lawsuit challenges a Hollywood pillar: Unpaid internships

Eric Glatt

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from www.latimes.com

Melvin Mar’s entrée to Hollywood was far from glamorous. As an unpaid intern for "Platoon" producer Arnold Kopelson, Mar was responsible for fetching his boss’ lunch of matzo ball soup every day.

Mar calculated to the minute how long it would take to walk from the production company’s Century City offices to the Stage Deli nearby, buy the soup and decant it into a bowl on Kopelson’s desk, still piping hot, at precisely 1 p.m.

Mar parlayed his internship into jobs at DreamWorks and Scott Rudin Productions. Now Mar is a producer for "Bad Teacher" filmmaker Jake Kasdan — and he says he owes a lot to the lessons he learned as a humble Hollywood gofer 15 years ago.

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"The soup — it was about getting it right, the details," said Mar, 35. "It prepared me for everything else."

Uncompensated minions are as central to the movie business as private jets, splashy premieres and $200 lunches. But the Hollywood tradition is under assault.

A class action by former interns on the 2010 film "Black Swan" could radically change the industry’s reliance on unpaid neophytes. The suit seeks back pay, damages and an order barring use of unpaid interns at Fox Searchlight Pictures and other units of Fox Entertainment Group.

A legal victory for the plaintiffs "would bring to a halt the many unpaid internships that offer real value to participants, giving them experiences and opportunities they would not otherwise receive,"…

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Congratulations To Our 2014 SuperLawyers

We are proud to congratulate each of Victor Pasternack,Barbara Doblin TilkerJordan ZieglerCatherine StantonEdgar Romano and Robert Saminskyfor being named to the New York Super Lawyers list as one of the top attorneys in New York for 2014. No more than 5 percent of the lawyers in the state are selected by Super Lawyers.

This is the 9th consecutive year Ziegler has been selected, the 8th consecutive selection for Tilker and Stanton, the 6th for Pasternack and Saminsky and the 5th for Romano.

We are honored that so many of our attorneys have a multi-year recurring presence on this prestigious list. 

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

The first Super Lawyers list was published in 1991.

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The Right to a Safe Workplace

Today’s post comes from guest author Todd Bennett, from Rehm, Bennett & Moore.

Under federal law, every employee has the right to a safe workplace. If you believe your workplace is dangerous and changes in safety policy are ignored, you can request an inspection from OSHA (Occupational Safety and Health Administration).

Workers’ compensation, which is regulated on a state-by-state level, covers medical bills, lost wages, disability and vocational rehabilitation services for employees injured on the job. If you have any questions regarding these benefits, please contact an experienced lawyer in your area.

 If you believe you work in an unsafe work area, here are some tips to be aware of to make sure your workplace is as safe as possible, and you protect yourself from significant injury:

  1.  Know the hazards in your workplace.
  2. While in a seated position, keep your shoulders in line with your hips. Use good form when lifting.
  3. Injuries occur when workers get tired. Take breaks when you’re tired.
  4. Do not skip safety procedures just because it makes the job easier or quicker. Using dangerous machinery is the one of the leading causes of work injuries.
  5. Be aware of where emergency shutoff switches are located.
  6. Report unsafe work areas.
  7. Wear proper safety equipment.

If you are injured due to an unsafe workplace, and you are unsure of the benefits that you are entitled to, contact an experienced attorney in your area.

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College Athletes Unionized? They Must Be Employees First

Northwestern University Quarterback Kain Colter

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

Northwestern University quarterback Kain Colter announced plans to form the first labor union for college athletes. The College Athletes Players Association, in concert with the Steel Workers (who have agreed to pay the legal bills for the effort) will try to unionize college athletes. The big question: whether college athletes can be considered employees.  If certified by the National Labor Relations Board, the union will be called the College Athletes Players Association. In order for the association to be recognized as a union, the players have to prove they are employees and that the NCAA or each school is its employer. Most experts indicate this is an uphill legal fight.

Worker’s compensation lawyers see everything through the prism of worker’s compensation law. Most State statutory schemes presume that a worker is an employee, except where the employee may be considered a volunteer or an independent contractor. Where the top five power conferences ACC, SEC, Pac-12, Big Ten, Big Twelve generate nearly $10 billion annually, it is hard to claim players are “volunteers” in this system.

Some college athletes who have been seriously injured have filed worker’s compensation claims. Those claims have all been dismissed on the notion that the injured player was not a “employee” and thus not entitled to benefits. (see our prior blog posts on this issue

Athletes who successfully use their college careers as a platform for a later career in professional sports are not the norm. In many situations, college players are injured, precluding any further athletic career for pay. There is no compensation awarded for this lost potential career. Furthermore, if an athlete is injured while on campus, once they leave school or graduate, the school generally does not covered future medical costs for that injury.  

Worker’s compensation lawyers will be monitoring the case with interest.

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Lawsuit kicks off class action claims against GM

General Motors Co’s new chief executive Mary Barra addresses the media during a roundtable meeting with journalists in Detroit, Michigan January 23, 2014. REUTERS/Carlos Osorio/Pool

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from www.reuters.com

NEW YORK (Reuters) – General Motors was hit on Friday with what appeared to be the first lawsuit related to the recall of 1.6 million cars, as customers claimed their vehicles lost value because of ignition problems blamed for a series of fatal crashes.

The proposed class action, filed in federal court in Texas, said GM knew about the problem since 2004, but failed to fix it, creating "unreasonably dangerous" conditions for drivers of the affected models.

"GM’s mishandling of the ignition switch defect….has adversely affected the company’s reputation as a manufacturer of safe, reliable vehicles with high resale value," the lawsuit said.

The recall has led to government criminal and civil investigations, an internal probe by GM, and preparations for hearings by Congress. All ask why GM took so long to address a problem it has said first came to its attention in 2001.

A GM spokesman, Greg Martin, said the company has apologized for how it handled the recall and that taking care of customers was its first priority. He did not comment on the lawsuit.

The plaintiffs are seeking damages from GM that include compensation for loss of the use of their vehicles and repairs and diminished resale value. They are not claiming they were injured in accidents stemming from ignition problems.

The lawsuit is reminiscent of claims faced by Toyota Motor Corp, which recalled more than 10 million vehicles starting in 2009. Toyota last year received approval for a settlement…

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