July 30, 2019
Often times employers classify an “employee” as an “independent contractor,” for reasons that may center on financial gain (avoiding the payments of benefits and taxes) and to avoid exposure for liability of that person’s negligence. If a company has the green light to skirt liability for their agent’s negligence simply based on their own (often times unilateral and self-imposed) designation, the agent themselves could be left holding the bag and/or be personally liable for issues that arise from their work on a jobsite.
This misclassification and the ramifications of the same are inherently important to many of FWY’s clientele, such as workers in industries regulated by the Occupational Safety and Health Administration (OSHA). This includes, but is not limited to, the fields of construction and maritime. You may be reporting to work every day unsure of your classification. If you’re being paid by an IRS Form 1099, your employer will most likely deem you an “independent contractor.” Since many of our clients put themselves on the line every day by working in these demanding, often dangerous fields, it is imperative to let those workers know that they may have legal grounds to challenge any misclassification.
Recently, a compliance safety and health officer for OSHA inspected a residential construction worksite in Sylvania, Ohio. J & M Miller Construction (“J & M”), a limited liability company based out of Fort Wayne, IN, was working on the site, and it had been alleged that some of J & M’s “employees” were violating various OSHA regulations. The OSHA inspection resulted in citations for serious violations for failing to provide adequate/necessary fall protection (29 CFR 1926.501(b)(13)); failing to provide a training program regarding fall hazards (29 CFR 1926.503(a))); failing to provide adequate eye protection (29 CFR 1926.95); and failing to ensure that each scaffold was at least 18 inches wide (29 19226.501(b)(13).
J & M argued that they had no “employees,” but rather “independent contractors,” for whom they were not responsible for supervising.
While investigating J & M, compliance officers discovered that Mr. Miller was referred to as the “boss.” The officer further obtained and reviewed an Independent Contractor Agreement between a general contractor (“GC”) and J & M which specified that J & M was to complete the job with their own “employees,” and also that J & M agreed not to assign or subcontract any portion of the work without the GC’s express consent.
The administrative law judge in the J & M matter rejected J & M’s defense, and instead balanced a number of factors (including but not limited to who is in charge and who provided direction). It was held that there is a “totality of the circumstances” test that must be employed to determine whether an individual working for a company is an employee, or independent contractor. As such, a mere agreement to be considered an independent contractor is not one of those circumstances.
You may be someone who is reporting to work every day and unsure of whether you, yourself could be held liable for a mistake made. You may also be someone who is looking for work and has been told that you must sign something along the lines of an Independent Contracting Agreement, or told that you are an independent contractor because you receive a 1099 form as opposed to a W-2. These actions may very well be violations of applicable Federal and/or state laws (MA state courts have recently made agent-favorable changes to the Independent Contractor Statute as well).
If your place of work has denied coverage to you because they deem you an “independent contractor,” or if you have been declined work because you refuse to sign an agreement akin to the one highlighted herein, give FWY a call today.
July 18, 2019
Mike Flynn, FWY’s founding partner and lead trial counsel, recently was the featured speaker at the Short Line Railroad Association’s 26th Annual Liability Conference which was held in Williston, VT. The conference, attended by short line railroads, vendors who service them and their insurers, focuses on legal issues that impact railroad liability and risk management matters.
Mr. Flynn’s presentation, which was given in conjunction with a representative of the FRA (Federal Railroad Administration), focused on federally mandated grade-crossing inventory forms, more specifically how a railroad’s providing incorrect, inaccurate or incomplete information on these inventory forms can expose it to liability in the event that an accident takes place at the grade-crossing to which the inventory applied.
During the FRA’s portion of this presentation, the law pertaining to these inventory forms was discussed, including reference to “The Railroad Safety Improvement Act of 2008”, which required, in addition to other matters, that railroads and the states in which the railroads are located, take on joint mandatory responsibility for filling out and periodically updating their grade-crossing inventory forms. This act also established deadlines for doing so and also amended both 23 US Code § 130 and 49 US Code § 20160 pertaining to, respectively, state’s and railroad’s inventory form obligations.
During Mr. Flynn’s portion of the presentation, he discussed a case that he recently tried in Vermont that involved a grade-crossing accident in which the injured plaintiff’s theory of liability was based in part on incorrectly filled out inventory forms. The railroad in Mr. Flynn’s case had inaccurately identified the crossing as private (versus public) on an inventory form which was prepared just one month before the accident in question. Mr. Flynn discussed how this issue became relevant at trial and how he was able to respond to and ultimately defeat this claim. During the trial, which lasted nearly a month in January 2018, the plaintiff’s lawyer asked the jury to award $51 million including a significant amount in punitive damages. After hearing Mr. Flynn’s arguments in the case, and a short period of deliberations, the jury ultimately rendered a defendant’s verdict entirely exonerating Mr. Flynn’s railroad client.
The case was thereafter appealed to the Vermont Supreme Court and which, after hearing arguments in October 2018 (which, coincidentally were held at the Proctor High School in Proctor, VT) affirmed the verdict in all respects.
June 26, 2019
FWY devotes a great portion of our practice to representing injured fishermen. Unlike our competitors, we are not afraid to go the extra mile for our clients and aggressively pursue all avenues of recovery available to them. There are many aspects of admiralty law that, if pursued correctly, can help injured fishermen level the playing field against unscrupulous vessel owners and the gigantic insurance companies that are oftentimes more interested in delaying and obstructing a fisherman’s lawful recovery.
One of these procedures allows an injured fisherman to arrest the vessel upon which he or she was injured. Recently, in a case involving one of our injured fisherman clients, we secured the arrest of the vessel on which he was injured and are currently trying to bring the case to favorable resolution.
If you are an injured fisherman, or know one, please don’t hesitate to call us to talk about this and other provisions in the law which might help you get what you deserve if you are injured while working as a commercial fisherman.
June 4, 2019
Please join local chapter president Lori Wirkus and the Massachusetts Chapter on June 20, 2019 for an early summer Networking Event at THE BLACK BOX in Franklin, Massachusetts, conveniently located steps from the MBTA commuter rail, I-495 and I-95, with free parking. Spirits, food and exciting live music and entertainment will be provided. Great connections with your CLM colleagues guaranteed!
For more information about the Claims & Litigation Management Alliance or to register for this event check please link here.
April 19, 2019
Standing up for our clients’ rights. That’s what we do here at FWY. Often times our clients are injured due to the carelessness of their employers or other unsafe workplace activities. Our clients are also frequently subject to workplace discrimination and retaliation simply because they were injured through no fault of their own. Bringing these wrongdoers to justice is central to our mission. Sometimes, to make matters even worse, the attorneys hired by the defendants in our cases employ unscrupulous litigation tactics to try to make the situation even more unfair. It is paramount to what we do to step in and prevent this from happening by leveraging all of the protections that the law provides.
Recently our firm prevailed in a motion for sanctions we were forced to pursue against these types of unscrupulous defense tactics. The situation involved a vessel owner who withheld crucial documentation in violation of procedural rules and then tried to sandbag our client at his deposition by springing the documents on him without his prior knowledge. Our attorneys immediately shut down the deposition and sought the intervention of the court who agreed with us that this type of conduct was sanctionable and issued an order awarding equitable relief as well as a monetary penalty.
Please contact us to learn more.
April 16, 2019
FWY is proud to announce that Founding Partner Michael Flynn has been recognized with a 2019 AV Preeminent® Judicial Rating. This rating is earned by attorneys with the highest possible ranking in both legal ability and ethical standards, reflecting the confidential opinions of members of the Bar and the Judiciary. It is a testament to the fact that judges rank him at the highest level of professional excellence. Congratulations Mike!
February 8, 2019
FWY is pleased to have recently purchased two paintings from Cambridge artist, Tanya Hayes Lee. The paintings now hang in our Quincy, MA office and are an eye catching addition to our lobby for clients and employees to enjoy as they enter our firm doors. FWY founding partner, Mike Flynn, recently happened upon her work at True Bistro in Somerville, MA and immediately admired them, recognizing they would be a perfect complement to the office. He purchased one there and commissioned the second, both of which were installed this week. We are happy to be able to support local artists and feel lucky to have encountered her work.
Ms. Lee will be having a showing of her work at the following locations and dates:
Simon’s Coffee Shop, 1763 Mass. Ave., Cambridge, MA – Currently through March 10, 2019.
Rockport Art Association & Museum, March 30 – April 11, 2019; opening on March 30, 2019, time TBD
Newton Free Library, April 1-30, 2019
October 26, 2018
FWY was recently mentioned in Massachusetts’s Lawyers Weekly in regards to a favorable workers’ compensation settlement achieved for our client. The case involved a plaintiff who suffered a work related back injury requiring multiple surgeries. Read more information about the settlement here.