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The Managing Partner of the New Jersey office of Kaufman Dolowich Voluck & Gonzo LLP has been selected as a 2012 Super Lawyer; two attorneys have been named 2012 Rising Stars.

John R. Gonzo, the firm’s New Jersey Managing Partner, was recognized as a Super Lawyer in Professional Liability Defense. Partner Christopher Nucifora and attorney Jacqueline Curko were selected as 2012 Rising Stars.

John R. Gonzo, who has been selected to Super Lawyers for the second consecutive year, is an AV Preeminent™ Rated attorney with 20 years of experience litigating professional liability and employment matters in both state and federal courts, and before regulatory boards. He has represented appraisers, attorneys, accountants, doctors, architects, engineers, financial representatives, insurance brokers and agents, real estate brokers and agents, third party administrators, and insurance companies, among others.

A graduate of Vermont Law School, Mr. Gonzo’s practice also includes insurance coverage, cyber liability, and complex commercial litigation on behalf of institutional and private clients.

Christopher Nucifora is an accomplished commercial litigator who has a broad range of experience handling complex matters, with an expertise in information and privacy security. His practice includes litigating and resolving business and corporate conflicts, private and public construction disputes, and fidelity and suretyship claims. His diversified clientele includes closely held and publicly traded multi-national corporations, contractors, licensed professionals and technology companies.

A graduate of Seton Hall Law School, Mr. Nucifora is highly regarded in all aspects of litigation from discovery through trial, as well as mediation and arbitration. He is also an accomplished author and speaker in his areas of expertise.

Jacqueline Curko, who has been named a Rising Star for the second consecutive year, concentrates her practice in the areas of general commercial litigation, franchise law and labor and employment law. She has experience representing individuals, corporations and insurance carriers in state and federal courts throughout New Jersey.

Ms. Curko received her Juris Doctor from the New England School of Law.

Michael A. Kaufman, KDVG’s Managing Partner stated, “John, Christopher, and Jacqueline represent the high caliber of attorneys who work at KDVG, particularly in the New Jersey office. John has done a tremendous job further enhancing KDVG’s eye for attracting top legal talent, as evidenced by the fact that his office has produced two Rising Stars this year.”

Super Lawyers, a Thomson Reuters business, 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. Rising Stars are selected from among outstanding attorneys younger than 40.

About Kaufman Dolowich Voluck & Gonzo LLP

Kaufman Dolowich Voluck & Gonzo LLP (KDVG) is a national law firm serving the insurance and business communities in a number of practice areas. Our seasoned litigators and legal practitioners place our clients first, think like business people, and provide our clients with viable and innovative solutions that offer them the best resolution possible. Headquartered in Woodbury, New York (Long Island), KDVG serves our global clientele with additional offices in New York City, New Jersey, Pennsylvania, San Francisco, Los Angeles, and Florida. For more information on KDVG’s practice areas, attorneys, and how we can assist you with your legal matters, http://www.kdvglaw.com.

The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice.

For more information
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Today, the District of Columbia Circuit Court of Appeals issued an emergency injunction blocking the National Labor Relations Board (“NLRB”) from enforcing its long anticipated poster requirement, which had been scheduled to take effect April 30, 2012. According to the three judge panel in National Association of Manufacturers v. NLRB, Case No. 12-CV-5068 (D.C. Cir. April 17, 2012), “The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo” while the Court “resolves all of the issues on the merits.” The posting deadline is delayed until the merits of the appeal are decided. Oral arguments on the issue are not anticipated to occur until September 2012, and no decision by the Court is expected before late Fall.

The NLRB rule, which would require most private sector employers to post a notice explaining workers’ collective bargaining rights, has been the subject of recent district court decisions addressing the NLRB’s attempts to broaden its “rule-making authority.” According to the NLRB, the rule was instituted because “many employees protected by the National Labor Relations Act (“NLRA”) are unaware of their rights under the statute and that the rule will increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute. A beneficial side effect may well be the promotion of statutory compliance by employers and unions.”

The appellate court’s injunction follows on the heels of last Friday’s decision from the federal District Court for South Carolina striking down the NLRB’s authority to even issue such a rule. The decision, Chamber of Commerce v. NLRB, Case No. 11-CV-2516 (D.S.C. Apr. 13, 2012), held that the NLRB lacked the authority to force employers to post a notice advising employees of their rights under the NLRA. This decision, cited by the D.C. Circuit Court of Appeals, squarely contradicted a prior district court decision (Association of Manufacturers v. NLRB, Case No. 11-CV-1629 (D.D.C. Mar. 2, 2012), holding the NLRB did in fact have the authority to require the poster.

In light of the current injunction, employers are not now required to post the notice. However, employers should stay tuned to future KDVG Alerts for the latest developments.

For more information on this development as well as other NLRB rules, contact Arthur Kaufman and Jeff Meyer at (516) 681-1100. Additional information regarding the posting requirement can be found at www.nlrb.gov/poster.

The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice.

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After numerous delays caused by lawsuits and other challenges, the National Labor Relations Board (“NLRB”) is formally implementing an Administrative Rule that requires most employers to post a notice explaining employees’ rights to organize and to engage in union activity. The deadline for the posting is April 30, 2012.

While the legality of the notice posting is still being challenged in the appellate courts, the NLRB is proceeding with the posting requirement. This is not particularly surprising inasmuch as the NLRB has historically maintained its own rules and regulations in the face of contrary appellate law. Here, the NLRB is relying on a recent opinion of the United States District Court for the District of Columbia upholding the NLRB’s authority to require the poster as part and parcel of its “rulemaking authority.” Notably, the same decision also strips the rule of its strict penalties and statute of limitations tolling provisions. Thus, in its current form, there are no monetary penalties directly associated with the failure to comply with the posting mandate.

An employer’s failure to post does not, by itself, constitute an unfair labor practice under the National Labor Relations Act (the “Act”). However, the failure to display the poster may be considered by the NLRB in determining whether an employer has engaged in other conduct which violates the Act.

For now, it seems the penalties for non-compliance have been significantly weakened. Yet, this battle is far from over given the NLRB’s ongoing attempts to strengthen unionization efforts through both regulatory overreach and its legal opinions. More importantly for employers choosing to remain nonunion, compliance with the NLRB posting requirement may well serve to cause employees to ask questions. Employers must be ready with the answers.

For more information on this development as well as other NLRB rules, contact Arthur Kaufman and Jeff Meyer at (516) 681-1100. Additional information regarding the posting requirement can be found at www.nlrb.gov/poster.

The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice.

For more information
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California employers have been patiently waiting for the State Supreme Court to determine the parameters of an employer’s obligations when “providing” meal periods to employees, and the decision is finally here. Today, the California Supreme Court issued its opinion in Brinker v. Superior Court (Hohnbaum), concluding that “the employer need not ensure that no work is done during an employee’s meal period.” The employer satisfies their obligation under the meal period provision “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” The Court’s approach seeks to provide balance in the workplace—allowing employees to take their breaks, while also accounting for scheduling flexibility based on the wishes of the employee and the inherent demands of their job duties. From the employer’s perspective, the ruling removes the burden of the meal period penalty payment when an employee voluntarily misses a meal period.

While California requires employers to “provide” employees who work five hours or more with a thirty-minute off-duty unpaid meal period, the scope of this language has not been without confusion and much debate. Indeed, the definition and scope of “provide” has been the hot topic among wage and hour practitioners for years. As expected, Brinker states that an employer’s obligation to “provide” ends at making meal periods available to eligible employees, with a prohibition against dissuading or impeding employees from taking their break. The Brinker decision confirms that the employer need not “ensure” employees take their breaks. Whether to take a break or not, the Court left entirely to the employee.

This decision will no doubt yield a positive result for those employers involved in class action lawsuits over their meal period policies. If an employer’s meal break policy is compliant under Brinker, and employers do not require employees to take their meal period, then there should be sufficient individualized issues concerning missed meal periods to make a strong argument against certification.

The Court also clarified how employers must treat the rolling-five-hour issue. Again, the Court found an appropriate balance between an employee’s right to a well-deserved break with an employer’s need to staff their business by holding that the meal period requirement “imposes no meal timing requirements beyond those [Labor Code] in section 512” and “an employer’s obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.”

There will very likely still be some growing pains as the courts deal with various scenarios, implementation strategies and hiccups in the aftermath of Brinker. Companies should work closely with their HR staffs and employment counsel to design training programs for managers, employees and payroll staff.  Existing meal and rest period policies and practices must be reviewed in order to determine what changes, if any, are needed in light of the Brinker decision.

For more information on these matters, contact the attorneys in KDVG’s Employment Law practice group or visit us at www.kdvglaw.com.

The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice.

For more information
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Kaufman Dolowich Voluck & Gonzo LLP today announced the addition of Joan Stevens Smyth as a partner in the firm’s Los Angeles office.

“We are fortunate to have an attorney with Joan’s level of experience and success join us,” said Frances O’Meara, the firm’s Los Angeles Managing Partner. “She brings a depth of knowledge in the field of public sector law, which will benefit many of our clients. She is a valued colleague and formidable competitor whom I welcome to our side of the table.”

Ms. Smyth focuses her practice on the litigation of matters related to public sector law, including eminent domain and condemnation, tort defense, zoning, land use, elections, municipal finance bonds, subdivision improvement bonds and development, as well as the defense of governmental officers and employees.

“KDVG is a well-sourced law firm with a great bench of attorneys,” said Ms. Smyth. “Its Los Angeles office is particularly well-positioned to support my ongoing work with California public sector clients, affording me an expanded platform. This is truly a firm that has what it takes to support a growing and dynamic practice.”

A former city prosecutor and city attorney, Ms. Smyth has successfully guided several public agencies through grand jury and federal investigations. In addition, she is an expert in the burgeoning field of medical marijuana litigation, successfully defending attacks on municipal zoning ordinances banning dispensaries through trial, appeal and the California Supreme Court.

Ms. Smyth graduated from Pepperdine University School of Law. She is a member of the California State Bar Association (Public Law Section), the Los Angeles and San Fernando Valley Bar Associations, and the City Attorneys Association of Los Angeles County. She co-authored “State Municipalities: Beware of SEC Administrative Proceedings,” which was published in the Los Angeles Daily Journal in May 2011; and is a sought-after media commentator on the topic of medical marijuana litigation.

About Kaufman Dolowich Voluck & Gonzo LLP

Kaufman Dolowich Voluck & Gonzo LLP (KDVG) is a national law firm serving the insurance and business communities in a number of practice areas. Our seasoned litigators and legal practitioners place our clients first, think like business people, and provide our clients with viable and innovative solutions that offer them the best resolution possible. Headquartered in Woodbury, New York (Long Island), KDVG serves our global clientele with additional offices in New York City, New Jersey, Pennsylvania, San Francisco, Los Angeles, and Florida. For more information on KDVG’s practice areas, attorneys, and how we can assist you with your legal matters, http://www.kdvglaw.com.

The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice.

For more information
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Kaufman Dolowich Voluck & Gonzo LLP (KDVG) today announced the addition of Caroline Kennedy as Of Counsel in the firm’s Insurance practice. She is a member of the New York bar and is on the Roll of Solicitors of England and Wales. Ms. Kennedy has extensive experience in the defense of professional liability, directors and officers (D&O) liability, insurance coverage disputes, and commercial litigation. Prior to joining KDVG, Caroline was solicitor with CMS Cameron McKenna LLP in the firm’s London office.

“Caroline will be a great asset to the firm’s clients both in the US and the UK. She has strong relationships with a number of UK insurers that are already our clients,” said partner Ivan J. Dolowich, Chair of the Insurance Coverage and Monitoring Group at KDVG. “Adding her significant experience, with the UK approach to coverage and subrogation matters, will give our clients a great advantage.  We are increasingly doing more work for these insurers, and her on-the-ground experience and contacts will be a real plus.”

Since 2006, Ms. Kennedy’s practice has focused on professional indemnity litigation, with an emphasis on the defense of claims against attorneys, appraisers and claims involving allegations of fraudulent conduct. She has represented major insurers as coverage counsel and has litigated multimillion-dollar subrogated recovery claims and coverage disputes. She was also seconded to a larger insurer in the London market.

In addition to representing UK clients, Ms. Kennedy will assist KDVG with UK-based matters involving U.S. clients, noted Kevin M. Mattessich, managing partner of the firm’s New York office. “Caroline’s training as a solicitor enables us to provide more comprehensive service to our U.S. clients, which is an area of work where we have seen significant growth in recent years.”

Ms. Kennedy said she made the decision to join KDVG based on positive feedback from clients about the firm, a recognized leader in insurance defense and coverage  litigation. “The firm maintains an interesting mix of cases, and its lawyers enjoy an incredibly collegial working environment,” she said. “Because we have many clients in common, I expect the transition to be seamless, and I look forward to growing my practice in New York and London.”

Ms. Kennedy was licensed to practice in New York in 2006 and was admitted as a solicitor of England and Wales the same year. She earned a Master’s degree in Corporate Law from the New York University and completed the Legal Practice Course with Distinction from The College of Law, London. She obtained a Diploma in European Law from the Universite des Sciences Sociales, Toulouse, France, and a Bachelor of Civil Law, First Class Honors Degree from the University College, Dublin.

About Kaufman Dolowich Voluck & Gonzo LLP

Kaufman Dolowich Voluck & Gonzo LLP (KDVG) is a national law firm serving the insurance and business communities in a number of practice areas. Our seasoned litigators and legal practitioners place our clients first, think like business people, and provide our clients with viable and innovative solutions that offer them the best resolution possible. Headquartered in Woodbury, New York (Long Island), KDVG serves our global clientele with additional offices in New York City, New Jersey, Pennsylvania, San Francisco, Los Angeles, and Florida. For more information on KDVG’s practice areas, attorneys, and how we can assist you with your legal matters, http://www.kdvglaw.com.

The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice.

For more information
go to www.kdvglaw.com

Four attorneys in the Los Angeles office of Kaufman Dolowich Voluck & Gonzo LLP have been named 2012 Super Lawyers; a fifth has been named a 2012 Rising Star.

Frances O’Meara, the firm’s Los Angeles Managing Partner and Chair of its Diversity Committee, was recognized as a Super Lawyer in Professional Liability Defense; partner Stephen M. Caine was recognized in Appellate; counsel Nancy Lucas Ezzell was recognized in Professional Liability Defense; and counsel Peter Q. Ezzell was recognized in Civil Litigation Defense. Joel T. Shackelford was named a Rising Star.

Frances O’Meara is a nationally recognized professional malpractice attorney who concentrates her practice in errors and omissions defense for attorneys, accountants, architects, insurance agents, real estate brokers, appraisers, and other professional lines. She is a certified specialist in Legal Malpractice Law by the State Bar of California Board of Legal Specialization and advises professionals and law firms on legal professional and ethical issues, as well as issues relating to risk management and loss control.

A graduate of Loyola of Los Angeles Law School, Ms. O’Meara also handles cyber liability and data breach matters throughout the State of California.

Stephen Caine has been certified as an appellate specialist by the State Bar of California, Board of Legal Specialization, since 2002. In addition to matters before the federal and state appellate courts, his trial court practice focuses on professional liability defense, primarily for attorneys, accountants, architects and engineers, commercial and corporate litigation, civil RICO and unfair competition claims, insurance “bad faith” actions, toxic exposure claims including asbestos litigation and California’s “Prop. 65,” and general liability tort claims.

A graduate of Pepperdine University School of Law, he has authored over 110 appellate briefs and writ petitions on a range of topics, including personal injury litigation, professional liability, real estate law, government tort claims, and commercial litigation.

Nancy Ezzell focuses her practice on the defense of legal malpractice claims, as well as commercial litigation, product liability litigation, and employment matters. Her trial experience includes cases involving professional liability, wrongful death, fraud, and RICO.

Ms. Ezzell has extensive experience in appellate and trial court briefing, including preparing briefs, petitions, motions and pleadings for federal and state courts across the country, including the United States Supreme Court. Her experience includes complex litigation as well as coordination of litigation on a national and regional level.

Peter Ezzell, who has been named to Super Lawyers for the ninth consecutive year, concentrates his practice on matters related to commercial litigation, employment, professional liability and product liability. He is well known for being hired by other law firms to rescue “troubled cases.” His specialty is jury trials, including commercial litigation, product liability, municipal and police agency torts, contractor liability, professional errors and omissions, insurance bad faith, and employment litigation.

The firm’s 2012 Rising Star Joel T. Shackelford concentrates his practice in the areas of commercial litigation and professional liability defense. He also serves as general counsel for various businesses in the distribution, entertainment, real estate, and technology industries.

Mr. Shackelford received his Juris Doctor and Master in Dispute Resolution from Pepperdine University School of Law.

The firm’s Los Angeles office has experienced phenomenal growth over the last year, adding a number of practice areas, particularly those involving litigation. Michael A. Kaufman, KDVG’s Managing Partner stated, “This is yet another barometer of the talented attorneys who work at KDVG, particularly in the Los Angeles office. Frances has done a tremendous job as its Managing Partner, further enhancing KDVG’s eye for attracting top legal talent.”

Super Lawyers, a Thomson Reuters business, 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. Rising Stars are selected from among outstanding attorneys younger than 40.

The first Super Lawyers list was published in 1991; by 2009, the rating service had expanded nationwide. In February 2010, Super Lawyers was acquired by Thomson Reuters, the world’s leading source of intelligent information for business and professionals.

About Kaufman Dolowich Voluck & Gonzo LLP

Kaufman Dolowich Voluck & Gonzo LLP (KDVG) is a national law firm serving the insurance and business communities in a number of practice areas. Our seasoned litigators and legal practitioners place our clients first, think like business people, and provide our clients with viable and innovative solutions that offer them the best resolution possible. Headquartered in Woodbury, New York (Long Island), KDVG serves our global clientele with additional offices in New York City, New Jersey, Pennsylvania, San Francisco, Los Angeles, and Florida. For more information on KDVG’s practice areas, attorneys, and how we can assist you with your legal matters, http://www.kdvglaw.com.

The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice.

For more information
go to www.kdvglaw.com

The Carlyle Group, one of the nation’s largest private equity firms, has withdrawn a provision mandating shareholder arbitration of all claims, including federal securities claims, from the documents filed in connection with its initial public offering (the “IPO”). The forced arbitration provision was met with strong opposition from the Securities and Exchange Commission (the “SEC”), as well as Carlyle Group’s investors and other interested parties, including lawmakers and the American Association for Justice, who argued that requiring Carlyle Group shareholders to arbitrate all claims impermissibly impinges on investors’ statutorily-protected rights to seek redress in court for securities law violations.

The Carlyle Group’s original IPO documents, filed with the SEC in September 2011, did not contain a forced arbitration provision.  However, on January 10, 2012, the Carlyle Group filed Amendment No. 2 to Form S-1 (the “Registration Statement”) with the SEC, seeking the inclusion of the mandatory arbitration clause. Pursuant to the compelled arbitration requirement, all arbitrations were to be confidential, conducted in Wilmington, Delaware, and, perhaps most notably, all class actions and claims consolidation were barred. The Carlyle Group, via spokesperson Christopher W. Ullman, explained that it offered the provision in an attempt to provide investors with an efficient and cost-effective means of resolving disputes.

The Registration Statement, if approved, would have forbidden investors from bringing individual or class action securities claims in federal and state courts, which sparked much scrutiny from the court of public opinion.  However, on February 3, 2012, the SEC issued a statement indicating that it would not approve the IPO as long as the forced arbitration provision was included therein, a decision which mirrors the SEC’s refusal to approve a Philadelphia savings and loan IPO that contained a similar compelled arbitration clause in 1990. Accordingly, the Carlyle Group decided to strike the forced arbitration provision, thereby restoring traditional investor protections to future Carlyle Group shareholders.

Prior to the SEC’s advisement that it would not sanction the forced arbitration provision, there was some speculation that the United States Supreme Court’s recent policy favoring arbitration would persuade the SEC to approve the clause.

Moreover, there was some speculation that since the Carlyle Group securities are being offered in limited partner units and in turn, the Carlyle Group operates as a limited partnership, as opposed to a corporation, the SEC would act with more leniency regarding the mandatory arbitration provision.  Now, however, the SEC has quelled the hypotheses regarding its stance on mandatory shareholder arbitration. In addition to resulting in the Carlyle Group nixing the compelled arbitration clause, the SEC’s disapproval of the Carlyle Group’s amended IPO also firmly establishes its opposition to forced arbitration of shareholder disputes, which will likely guide the SEC to reject any similar provisions proposed by corporations in the future.

For more information on these matters, contact the attorneys in KDVG’s Insurance Coverage & Monitoring practice group or visit us at www.kdvglaw.com.

The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice.

On January 25, 2012, the Financial Industry Regulatory Authority (“FINRA”) announced that it had imposed a $1 million fine against member firm, Merrill Lynch, Pierce, Fenner & Smith, (“Merrill”), because Merrill had instituted expedited court actions, rather than arbitration proceedings, to collect money that former registered representatives owed pursuant to promissory notes.   FINRA found that Merrill violated FINRA Rules 2010 and 13200 by structuring its promissory note program to avoid arbitrating disputes concerning promissory notes.

Background

In January 2009, after being acquired by Bank of America Corporation, Merrill created an Advisor Transition Program (“ATP”) to retain its registered representatives.   Pursuant to the ATP, Merrill paid lump sum retention bonuses to its registered representatives, which were structured as loans evidenced by promissory notes.  Among other things, the promissory notes indicated that the loan was being made by Merrill Lynch International Finance, Inc. (MLIFI), a non-FINRA registered affiliate of Merrill, and that any action regarding the note must “be brought solely in the Supreme Court of the State of New York in New York County.”   However, Merrill, not MLIFI, actually supplied the money for the loans.  According to the Acceptance, Waiver and Consent (“AWC”) executed by Merrill and FINRA, Merrill identified MLIFI as the party to the note and included the forum clause to allow Merrill to initiate expedited collection actions  pursuant to CPLR Rule 3213, which according to the AWC, “greatly limits defendants’ ability to assert counterclaims.”

In between January 2009 and November 2009, Merrill filed over 90 collection actions in New York state court.

FINRA’s Findings

FINRA concluded that Merrill’s actions violated Rules 2010 and 13200.  FINRA noted that Rule 13200(a) of FINRA’s Code of Arbitration Procedure requires that all disputes between members and its associated persons be arbitrated at FINRA Dispute Resolution and that IM 13000 states that the failure to submit a dispute to arbitration in accordance with the Code “may be deemed conduct inconsistent with just and equitable principles of trade and a violation of Rule 2010.”

In reaching this conclusion, FINRA specifically noted that Merrill structured the ATP to avoid arbitration by (1) making it appear that a non-registered entity, MLIFI, was providing the funds, and (2) including a forum selection clause identifying the proper forum as the Supreme Court of New York State for New York County.

Implications for Broker-Dealers

FINRA’s action against Merrill is significant for several reasons.  First, the enforcement action and the $1 million fine signals FINRA’s commitment to ensuring that FINRA Dispute Resolution remains the exclusive forum for resolving all disputes involving FINRA members.   Indeed, this case indicates that FINRA will oppose any legislative efforts to curtail mandatory arbitration. Second, the language of the AWC, which criticized the limited procedural rights available to defendants in expedited court proceedings, suggests that FINRA will take a negative view of any practices that seek to force litigants into forums less friendly than FINRA Dispute Resolution, where parties are generally prohibited from filing motions to dismiss in advance of hearings and arbitrators are free to issue decisions based upon “equitable principles” rather than upon strict application of the law.  This decision, however, will buttress efforts by firms to ensure that statutory discrimination and other employment claims are resolved at FINRA Dispute Resolution rather than in more time consuming court proceedings.

Should you have any questions regarding this alert, please contact Janene M. Marasciullo, Esq. Rina Spiewak, Esq, or Gregg Breitbart.

For more information
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Earlier this month, the National Labor Relations Board (the “NLRB”) issued a decision striking down arbitration agreements that prevent employees from joining together to pursue employment-related legal claims as a class.  In other words, the decision essentially bans agreements that companies may already have in place, requiring employees to pursue all claims individually through arbitration.

Rationalizing its decision, the NLRB determined that such an agreement violates Sections 7 and 8(a)(1) of the National Labor Relations Act (“NLRA”), which guarantee the rights of employees to engage in concerted, protected activity.  The NLRB made clear that its decision was sound and deeply rooted within the legislative intent of Congress in passing the NLRA, “notwithstanding the Federal Arbitration Act (FAA), which generally makes employment-related arbitration agreements judicially enforceable.”

Historically, the NLRB has been reluctant to allow employers to restrict collective actions or otherwise impinge upon employee rights.  Notably, the decision was rendered by the only two remaining NLRB Members (a third recused himself), of the five seats available, possibly signaling the tone of future NLRB decisions preserving or expanding employee rights

WHAT DOES THIS MEAN FOR EMPLOYERS?

At a minimum, employers should review all policies and arbitration language to ensure compliance with the law. While the NLRB emphasized that its holding is limited to actions brought under the NLRA only, it remains to be seen if other agencies – e.g., the EEOC, fall in line. In that regard, employers are well advised to consider the possible ramifications of the NLRB’s ruling when making personnel actions of any kind.

It is anticipated that the NLRB’s decision will be appealed to the United States Court of Appeals.  Until then, the holding will likely be followed by the NLRB.  However, it is at this time unclear whether federal courts will also rely upon the NLRB’s determination.

KDVG is available to assist employers with employment agreements, compliance and otherwise answer any questions about their rights and obligations under the law.

For more information on these matters, contact the attorneys in KDVG’s Employment Law Practice or visit us at www.kdvglaw.com.

The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice.