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

Senior Partner Matt Funk

Today’s post comes from guest author Matthew Funk, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

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.

Denied workers’ compensation and health insurance for a work injury? You might have a counter

Ohio State lines up to run a QB counter against Nebraska

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

My colleagues Paul McAndrew from Iowa and Bernard Nomberg from Alabama have blogged about the tragic but common situation of an employee who puts a work injury on private health insurance only to have health insurance deny payment because they discover the injury is work-related.

It is another example of injured workers getting squeezed. But in the right circumstances an injured worker can squeeze back— a counter-squeeze if you will.

In Nebraska health insurance benefits are considered wages. Nebraska allows employees to receive attorney fees when they sue for unpaid wages under what is called the Nebraska Wage Payment and Collection Act.  So an employer who is denying medical benefits under workers’ compensation, should not be able to deny payment of those bills under private health insurance.

Nebraska also prohibits employers from retaliating against employees for claiming workers’ compensation benefits. Retaliation is an adverse action related to the terms and conditions of employment. Denying payment of wages, in the form of health insurance, because the employee has filed a workers’ compensation claim should be retaliation.

So employers denying workers’ compensation and health insurance benefits can find themselves facing a wage and hour and retaliation case.  Of course, these types of cases are a lot more complicated than described in the last two paragraphs.

In order for the counter-squeeze to work, it is best to have an employer who is at a minimum self-insured for the purposes of health insurance and ideally self-insured for health insurance and workers’ compensation. Tyson, Crete Carrier and Werner Enterprises are large Nebraska employers who fit into the latter category. Self-insurance is important because it allows the employee to link the decision to deny benefits to the employer. In theory you can still make a counter-squeeze work when outside insurance companies are involved, but that turns the case into a civil conspiracy case that can be more costly and difficult to prove.

Wage and hour cases also require detailed proof of medical bills and existence of a valid contract for payment of benefits. If an employee appears to have misrepresented how an injury happened, an employer may be able to fire an employee regardless of any retaliatory motive on their part. But the employee who at first blush may have “screwed up their case” by paying for their workers’ compensation injury with their private health insurance, may be able to salvage a good outcome in their work injury case.

OSHA Cites a Florida Tower Contractor After Three Fatalities

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

OSHA cited a Florida communication tower contractor after three employees suffered fatal injuries at a Miami worksite.

MIAMI, FL – The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Tower King II Inc. after three employees suffered fatal injuries while attempting to install a new antenna on a communications tower in Miami.

During the investigation, OSHA determined that a gin pole system – a device that attaches to a communications tower to hoist loads – failed, causing the employees to fall. Investigators determined that the employer failed to ensure the capacity of the rigging attachments were adequate to support the forces imposed from hoisting loads. The Texas-based tower contractor was issued one serious citation for exposing employees to fall and struck-by hazards. The company faces $12,934 in proposed penalties, the maximum allowed under law.

“This tragedy underscores the importance of having a qualified individual conduct an analysis before performing construction work on communication towers,” said Condell Eastmond, Fort Lauderdale OSHA Office Director.

The company has 15 business days from receipt of its citations and proposed penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education, and assistance. For more information, visit http://www.osha.gov.

OSHA News Release: 03/27/2018   Release Number: 18-0414-ATL

For more information about this incident, see the Miami Herald’s article:

Three men died while working on a TV transmission tower for Channels 7 and 10 in Miami Gardens late Wednesday afternoon when the scaffolding used to reach the top of the tower collapsed.

Image credit: Tower King II logo, towerkingtwo.com.

 

Recovering From Injurty – “Is Heroism the Standard?” Redux

Judge David B. Torrey

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

My friend and colleague, Professor and Judge David Torrey, with whom I serve on the Board of the College of Workers’ Compensation Lawyers, recently posted this blog in response to an insurance industry speaker’s exhortation that injured workers should “ get off their asses” and get better. Here’s his moving response:

Many in the workers’ compensation community complain that seriously injured workers can develop a disability lifestyle, become dependent on drugs, and unreasonably extend their disabilities. Instead of falling into such a lifestyle, these critics argue, disabled workers should show “resilience.” This rhetoric, which I have written about before on this blog, has its genesis in progressive medical/rehabilitation thinking, Muscular Christianity (I think), and, realistically, employer/insurer cost considerations.

The complaint is legitimate, and one with which I have some sympathy. I also believe that some legitimately injured workers do indeed unreasonably extend their disabilities — if only waiting for a generous lump sum settlement. Many readers will know of the sharp critique of this type advanced by Dr. Nortin Hadler in his many books.

On the other hand, the “duty-of-resilience” critique can go too far, and is often articulated in overly simplistic terms. At my agency’s conference in Hershey, Pennsylvania (June 7-8), an articulate industry speaker, addressing an audience about medical marijuana, posited forcefully that the “choice between opioids and medical marijuana [for chronic pain patients] is a false choice….” What workers need to do, instead, is show some resilience and “get off their asses!” After all, a friend of his, who is partially paraplegic, has shown resilience and will often go hiking with him. If she can do it, so can others!

I believe the speaker knew his audience and thus took some pleasure in feeding these lions of the community some red meat, and indeed they rewarded this coarse declaration with a leonine roar of applause.

Yet, his panel partner, Dr. Michael Wolk, thereupon gently reminded the industry speaker — and the audience — that not all people respond to pain and other impairments the same way; indeed, he posited that science has shown that one’s genetic make-up can affect the ability to be resilient.

Dr. Wolk (my God, an astonishing speaker) might also have remarked, as have other physicians at our Pennsylvania conferences, that heroism is not appropriately considered the recovery standard in the first place. Commentators like the industry speaker, talking about resilience, often invoke exceptional individuals, like Christopher Reeve, but most of us realize that not everyone is Superman.

This point was vividly made two years ago in the memoir, A Body Undone: Living on After Great Pain (NYU Press 2016). The author, Christina Crosby, a professor at Wesleyan University, was rendered quadriplegic in a cycling accident, and has been left with chronic pain as well. She recounts in her memoir what life is like with such a catastrophic injury, shows that she indeed has great resilience — but leaves the heroism narrative behind. She makes clear that her circumstances, like education; a life of reflection and discipline; and the unflagging love and support of her family, make her ability to bounce back possible. Most of us know that not every injury victim will have these advantages. (My complete review of Professor Crosby’s book is posted at the research website www.davetorrey.info.)

Is all this not common sense? We have known for a century, after all, that young men respond differently to their traumatic wartime exposures. Some show a grim resilience; some are troubled for life, but are able to continue on; some are broken. In the modern day, most of us would not address such veterans with the admonition that they get off their asses. Injured workers deserve the same respect.

 

Three ways to make sense of Masterpiece Cakeshop

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

The Supreme Court’s decision in Masterpiece Cakeshop was not as harmful to LGBT rights or civil rights laws in general as feared.  In fact, Masterpiece was cited by the Arizona Court of Appeals in upholding a Phoenix municipal ordinance prohibiting LGBT discrimination in public accommodation.

But court watchers were left scratching their collective heads by the mixed signals sent by the court. Given a week to digest the decision and read over the commentary, I think Masterpiece is understandable in the broader context of other decisions made by the Roberts court. I think three trends explain Masterpiece: 1) The Court’s favor of protected status over protected activity) 2 skepticism of the “administrative state” and 3) the use of federal supremacy by the court to rein in progressive-leaning states and cities.

Protected Status > Protected Activity

Sexual orientation and gender identity are considered a type of protected class. Sometimes theses these statuses are protected expressly, like they are in state and municipal laws, or they are covered by sex as held by many federal courts. Civil rights laws protect everyone based on various protected statuses such as race, nationality, religion, sex, disability and age. Everybody is covered by multiple protected classes. Protected class discrimination is fairly non-controversial because most people agree that someone should not be discriminated against based on immutable traits like race or sex. Sexual orientation and gender identity are just additional protected classes that would apply some people.

This isn’t to say that LGBT rights are universally accepted. The fact there are so many litigated cases, like Masterpiece, based on direct evidence of discrimination should be proof of that statement. But even in conservative-leaning states like Nebraska, business interests have pushed to expand anti-discrimination laws to LGBT individuals in an effort to have cities and states be seen as “open for business”. That’s part of the reason that Omaha, like Phoenix, has a municipal ordinance prohibit discrimination based on sexual orientation and gender identity.   The Materpiece decision could be very persusasive to a Nebraska court hearing a challenge to Omaha’s laws prohibting discrimination agains the LGBT community.

Business looks less favorably upon protected activities than protected statuses. These are activities that individuals cannot be sanctioned for or retaliated against for engaging. From a business point of view the most problematic problematic activity is engaging in unionization or striking. Striking has re-emerged as a popular tactic for workers in the wake of teachers strikes and a possible strike by UPS drivers. The Supreme Court generally takes a business-friendly view on protected activity. In Epic, the court took a narrow view of what constituted protected concerted activity under the National Labor Relations Act. Earlier this term, in Somers v. DRT,  the court narrowed the definition of a whistleblower under Dodd-Frank. The split between how the court treats protected activities and protected statuses became apparent to me in 2013 when the court decided the landmark LGBT civil rights case Windsor in the same term they decided Nassar which raised the burden of proof for employees in Title VII retaliation cases. The same split between protected activity and protected activity is apparent in 2018 with Epic and Somers contrasted with Masterpiece.

Dislike of the Administrative State

The reason why Jack Phillips “won” Masterpiece was because of negative comments about religion made by a lone commissioner on the Colorado Commission on Human Rights. Phillips was being civilly charged by state administrative agency. The  Roberts court, Justices Gorsuch, Thomas and Alito in particular, are skeptical of the role of  administrative agencies on separation of powers grounds. That skepticism was evidenced by Justice Gorsuch’s comments about the National Labor Relations Board in Epic. ThIS terrm the court also heard what could be a close case about whether the Securities and Exchange Commission can use Administrative Law Judges to punish misconduct in the securities industry that could have broad — if not disruptive — implcations. If nothing else, Masterpiece is a bench slap to an administrative agency.

I also believe that Masterpiece could have a chilling effect on state and local human rights commissions.  I have served on the Lincoln Commission on Human Rights since 2014.  Even before Masterpiece was decided, commissioners were given a memo describing the concerns expressed by Justice Kennedy in oral arguments in Masterpiece about the comments made by the Colorado Civil Rights Commissioner. Civil rights commissioners often engage in spirted discussions about what constitutes unlawful discrimination in a particular case. It would be unfortunate if Masterpiece lead commissioners to self-censor over fears that those comments could be used by the parties they believe could be engaged in unlawful discrimination.

Federal supremacy over states and cities

Jack Phillips succeeded in making a first amendment argument that the Colorado Commission on Civil Rights violated his freedom of religion by making impermissible comments about his religion. Phillips resorted to federal law to strike down a decision made by the state agency of a progressive-leaning state. Much of the arbitration case law that supported the Epic decision was based on the Federal supremacy of  the Federal Arbitration Act over state laws that  prohibited arbitration. Many of these state laws were passed by “blue” states such as California. By overruling a decision made by the Colorado Commssion on Civil Rights, the Roberts court was able to assert some measure of federal supremacy over a progressive-leaning state.

U.S. Department of Labor Announces YouthBuild Funding Opportunity

Today’s post was shared by US Dept. of Labor and comes from www.dol.gov

WASHINGTON, DC – Today, the U.S. Department of Labor announced $85 million in grants to support and expand YouthBuild programs across the country. YouthBuild, a pre-apprenticeship model, provides at-risk youth ages 16-24 with education and occupational skill development to obtain employment in construction and other in-demand industries.

Since 2006, the U.S. Department of Labor has administered the YouthBuild program. Youth learn construction skills while constructing or rehabilitating affordable housing for low-income or homeless families in their own neighborhoods. Young people split their time between the construction site and the classroom, where they earn their high school diploma or equivalency degree and prepare for postsecondary opportunities.

Distributing $85 million in grant funding, the Department anticipates awarding grants that will range from $700,000 to $1.1 million each across the country. The Department is also encouraging organizations to expand their skills development to other high-growth occupations including health care, information technology, and logistics.

For additional information on the Department of Labor’s YouthBuild program, visit https://www.doleta.gov/Youth_services/YouthBuild.cfm.

For additional information on grant eligibility and how to apply for funds, visit http://www.grants.gov.

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West Virginia teachers show power of collective action

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

Teachers in West Virginia won a victory for working people recently after a nine-day strike forced lawmakers and their Governor to raise the pay of all public employees by 5 percent, agree to fix problems with the state’s health insurance system and maintain other employee protections.

The victory for the West Virginia teachers came shortly after many pundits predicted the downfall of public sector unions in the wake of an expected unfavorable decision from the Untied States Supreme Court in the Janus case. Many commentators pointed out that West Virginia was already a “right to work” state where unions can not compel the employees they represent to pay dues. 

The West Virginia teachers strike shows the power of collective action among employees. I have long advocated that employees exercise their rights under the National Labor Relations Act to work together to address the terms and conditions of their employment. Employees don’t need a union to exercise these rights. Collective action on the job can address bullying by a boss and can even help employees accommodate a disability.

The success of the West Virginia teachers seems to have encouraged teachers in Oklahoma to plan a strike as well. The example of the West Virginia teachers should also show employees that they can deal with smaller but no less serious issues with their employer or on their worksite.

Improper Body Mechanics While Lifting Far From Only Cause Of Nursing Injuries

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

A commenter on our firm’s Facebook page stated the use of proper body mechanics will prevent nurses from getting injured. There is some truth to that statement, but there are many ways, probably not limited to this list, that nurses can get injured that aren’t related to lifting at all. Here a few I’ve encountered recently:

  1. Inadequate staffing – There is a strong correlation between staffing levels and nursing injuries. Nurses, especially CNAs, may be forced to lift or move patients on their own because of inadequate staffing or lack of equipment. Nurses may also be forced to prevent patients from suddenly falling. Use of proper lifting techniques may not be possible in such situations.
  2. Patient attacks – Studies show patient attacks on nurses are on upswing. I see a lot of this in nurses that work in mental or behavioral health.  Even they aren’t nurses, many direct care workers and human services technicians who work in mental and behavioral health are vulnerable to patient or client attack. It’s hard to argue a patient attack is the fault of the nurse
  3. Slips and falls – Slip and falls are a common type of work injury. I represented a nurse working at a dialysis clinic who injured their back when they slipped in pool of urine.
  4. Environmental and chemical exposures – In rural areas, many nursing or medical facilities are in older buildings that are vulnerable to mold and other environmental exposure. If you work in a sick building, it’s hard to argue that’s your fault.

Even if you use proper technique, repetitive heavy lifting can still cause strain and can be disabling in some instances. Nursing personnel are particularly vulnerable to these types of injuries.

I want to make one thing crystal clear: whether a nurse or any other employee is injured because of improper lifting technique THOSE INJURIES ARE STILL COVERED BY WORKERS COMPENSATION! (most of the time) In exchange for no-fault compensation, employees give up the right to sue their employer for negligence. While this might not seem like a grand bargain to a worker who was hurt to no fault of their own, that compromise is the cornerstone of workers compensation.

While the idea of no-fault compensation for work injuries is a winner in a court of law, the idea is more controversial in the court of public opinion as expressed on social media. There is an idea out there that filing a workers’ compensation claim is “milking the system” and that you certainly shouldn’t file a claim if you are at-fault for the injury. Statements that nursing injuries can be avoided, if nurses just use proper lifting techniques is consistent with that line of thinking.

A lot of hostility to those who bring work injury claims and their attorneys stems from concepts like “personal responsibility.” But when a nurse is hurt on the job because of understaffing, slipping on urine on the floor or a toxic building, the employee isn’t fully able to hold their employer responsible for the full extent of their harms even if the employer is fully responsible for the harm.

There is also the assumption that workers compensation claims are fraudulent. But would it be fair to assume that all nursing homes defraud Medicare and Medicaid just because one chain of homes in Florida defrauded the government $1 billion? No, it wouldn’t and the same is true for workers’ compensation claims. Ultimately entitlement to workers’ compensation benefits is determined in court where employees are subject to medical examination from doctors picked by insurance companies. Injured workers are also subject to written and oral questioning from insurance company lawyers. Employees usually have formidable barriers to win compensation in a disputed workers’ compensation case, so the idea that fraudulent claims run rampant is absurd.