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FMG Law Blog Line

Archive for January, 2012

NLRB Holds Arbitration Clauses that Restrict Class Actions Violate the NLRA

Posted on: January 11th, 2012

By Brad Adler and Anthony Del Rio

On January 6, 2012, the National Labor Relations Board (NLRB) released a decision holding that employers cannot require employees to sign arbitration agreements that bar employees from bringing class (including collective) claims before a judicial body.  D.R. Horton, Case 12-CA-25764 (NLRB Jan. 3, 2012).  The ruling came down 2-0, supported by both Democrat members Chairman Mark Pearce and Member Craig Becker (notably on the final day of his appointment).  Republican Member Brian Hayes recused himself from the case.  The decision applies to all employers/employees covered under the NLRA.   (more…)

Another Risk of Using Independent Contractors – Workers’ Compensation Laws

Posted on: January 1st, 2012

By Bart Gary and Leanne Prybylski

Many businesses see the use of independent contractors as a way to circumvent laws applicable to employees, such as wage and hour laws, withholding of taxes and FICA and employee benefits.  Frequently, the benefits are too good to be true.  Add to the list of pitfalls, the workers’ compensation law.  Under many workers’ compensation laws the general contractor is the “statutory employer” of all employees working under its umbrella.  It is imperative that the general contractor ensure that its subcontractors have their own workers’ compensation insurance coverage.  In exchange for placing this “statutory employer” obligation on the general contractor, the statute also protects the general contractor from tort liability for injuries or death to employees of subcontractors.  Not only does this rule apply to construction contractors, but it also applies to anyone who hires independent contractors to provide services. (more…)

Georgia May Join Minority View of Assignability of Legal Malpractice Claims

Posted on: January 1st, 2012

By Dana Maine

Georgia may be on its way to joining the minority of states holding that, under some circumstances, legal malpractice claims can be assigned.  In a case of first impression, the Georgia Court of Appeals held in Villanueva v. First American Title Insurance Company that “malpractice claims are not per se unassignable.”  The case, however, is on its way to the Georgia Supreme Court with the chance that that court will pass a binding precedent along the lines of the opinion from the Court of Appeals.  (more…)

The Rise of Retaliation and Whistleblower Claims

Posted on: January 1st, 2012

By Ben Mathis and Anthony Del Rio

Retaliation claims against employers are on the rise, and all employers must be cognizant of the increased legal risk of such claims.  In 2010, for the first time ever, retaliation surpassed race discrimination and became the most common charge filed with the Equal Employment Opportunity Commission (EEOC). Since 2005, the number of retaliation claims filed with the EEOC has increased by 30 percent.  And, the EEOC, which enforces employment laws, only has jurisdiction over a small number of the 38 federal laws that provide whistleblower and retaliation protection.  (more…)