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November 2015

NLRB Doubles Down on ‘Joint Employer’ Standard Expansion

By: Tim Holdsworth

In a recent landmark decision, the National Labor Relations Board discarded thirty years of precedent and handed down a new and expanded definition of joint employer.  See Browning-Ferris Industries of California, 362 NLRB No. 186 (August 27, 2015). This decision comes on the back of the National Labor Relations Office of the General Counsel’s determination last year that McDonald’s USA, LLC, could be named as a joint employer in forty-three unfair labor practice complaints against its franchises, as previously discussed here.

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California, Again, Amends Its Data Breach Notification Statute

By: Kacie Manisco

On October 6, 2015, Governor Jerry Brown signed into law three separate bills amending California’s Data Breach Notification Statute. Together, the amendments, which take effect on January 1, 2016, expand the definition of “personal information,” provide a new definition for the term “encrypted,” and impose additional formatting and substance requirements for individual data breach notification letters. These amendments apply to all persons and businesses conducting business in California, as well as to all California governmental agencies.

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The Risk of Calculating Risks: Insurers Beware

By: Phil Savrin

Creative plaintiff's lawyers are always looking for ways to increase recoveries against insurance companies beyond the scope of coverage for the loss or the liability limits.  Aided by the courts, insurers must traverse such landmines as timely reservation of rights and waiver of defenses by inaction to enforce the terms of policies.  In addition, an unreasonable or premature settlement demand within policy limits can expose the insurer to liability for the full amount of a judgment regardless of the limits of the policy.

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The Return of the Intern?

blog 2By: Marty Heller  and Michael Hill

The Eleventh Circuit Court of Appeals has dramatically modified the test to determine whether an “intern” is an employee.  In Schumann v. Collier Anesthesia, P.A., --- F.3d ---, No. 14-13169, 2015 WL 5297260 (11th Cir. Sept. 11, 2015), students who were required by Florida law to complete a clinical internship to become licensed as certified registered nurse anesthetists sued because they were not paid for doing so.  In the lawsuit, they argued that they were actually “employees” under the Fair Labor Standards Act (“FLSA”) and therefore entitled to minimum wage and overtime pay.

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Firm and Attorney News 

Ben Mathis was selected to the Premier 100 Top Civil Trial Attorneys in the State of Georgia by the American Academy of Trial Attorneys. 


Michael Bruyere was awarded the G. Duffield Smith Publication Award by DRI - The Voice of the Defense Bar last month for his article "Medical Device Sales Representatives in the OR; Valuable Resource, Potential Liability, or Both?". To read the full article, click here.     


Ben Mathis and Mike Wolak obtained a voluntary dismissal and complete walk-away in a lawsuit in Florida for trade secret misappropriation and breach of a non-solicitation covenant. The claim - originally was brought by a competitor company against an employee of a national building materials company.  In response, FMG, on behalf of our client, counterclaimed for declaratory judgment, opposed the motion for temporary injunction, and sought discovery on the competitor's damage claims. In the face of this action, the competitor initiated settlement, leading to their dismissal of claims and voluntary end of the litigation.      


David Cole provided testimony to a Georgia Senate Study Subcommittee on the issue of employee misclassification.  In preparation for the upcoming legislative session, the Subcommittee is studying whether new state legislation is needed to help resolve when workers should be classified as independent contractors or employees.  Mr. Cole was invited to provide testimony to the Subcommittee based on his experience representing employers in labor and employment law.  


Atlanta Reception with Santa & Open House

Sunday, December 13th

from 3pm-5pm.

This is a family-friendly event, and your entire family is welcome.

There will be food, fun and a special appearance by Santa and Mrs. Claus!

Please RSVP to Erin Bowman at [email protected]

or 770-818-1425

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About Freeman Mathis & Gary, LLP

Freeman Mathis & Gary, LLP is a leading national litigation firm, serving clients through its practice groups in CGL and Business Liability, Commercial and Complex Litigation, Construction and Design Law, Financial Services and Transactions, Government Law, Government Relations, Insurance Coverage and Bad Faith, Labor and Employment Law, and Professional Liability. With offices in Georgia, California, Pennsylvania, New Jersey, New York, North Carolina and Florida, FMG attorneys serve as trusted counsel to corporations and governments throughout the country, providing practical, efficient, and cost-effective solutions for legal issues. For more information about FMG, visit www.fmglaw.com.


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