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Archive for the ‘Employment Law Blog – PA and NJ’ Category

To FMLA or not FMLA, that is the question…

Posted on: November 10th, 2017

By: Christopher M. Curci

FMLA and ADA leave questions are some of the most frequent that we receive from our clients.  Deciding whether an employee’s absence should be designated as FMLA leave, or granted as a reasonable accommodation under the ADA, is a legal land mine.

Fortunately, at least one federal judge in Pennsylvania recognizes the employer’s dilemma.  In Bertig v. Julia Ribaudo Healthcare Group, LLC, the employee suffered from bladder cancer and asthma, which are disabilities under the law.  She requested and was granted one month of FMLA leave in May of 2012.  She returned to work in June of 2012 as planned.

Beginning in April of 2013 and continuing through April of 2014, the employee called out sick thirteen times for various reasons, such as foot pain and a sore throat. She was terminated for violating the company’s attendance policy.  The employee filed suit alleging that she informed management that her absences were related to her disabilities, therefore her absences should have been designated as FMLA leave.  She also brought a claim for failure to accommodate her disabilities under the ADA.

The Court ruled in favor of the employer. The employee admitted during her deposition that ten of her thirteen absences were unrelated to her disabilities.  Because her absences were not disability-related, her termination did not violate the FMLA or ADA.  But, the most important takeaway in this case is the Court’s implication that the employer was not obligated to make further inquiry as to whether those absences were related to the employee’s disability before it made the decision to terminate her employment.  That burden fell on the employee given the totality of facts here.

While this decision is very fact specific, it is nonetheless a win for employers who struggle with FMLA/ADA leave requests. Just because an employee took FMLA leave in the past for a disability does not necessarily mean that the employer has a burden to inquire whether subsequent absences are related to that disability – especially when the absences occurred ten months later and the employee gives non-disability related reasons for the absences.

All employers should have written FMLA and ADA policies advising employees of their FMLA and ADA rights, and should document reasons for employee absences. Christopher M. Curci represents employers in litigation and advises his clients on all aspects of employment law.  If you need help with this or any other employment issues, he can be reached at [email protected].

Third Circuit Reminds Employers To Draft Compromise Agreements Carefully

Posted on: October 6th, 2017

By: Mark C. Stephenson

On August 12, 2104, Craig Zuber suffered a work-related injury, and then filed a workers’ compensation claim and took medical leave. He returned to work on August 14 and requested a further week of medical leave on August 17, 2014, which was granted. Zuber returned to work on August 26. On September 10, department chain Boscov’s fired Zuber. Six months later, on April 8, 2015 Zuber signed a Compromise and Release Agreement before the PA Department of Labor and Industry Workers’ Compensation office. In response, Zuber sued under the FMLA and Pennsylvania common law, which the federal district court dismissed based on the agreement’s express terms.

Boscov’s countered by contending that Zuber’s suit was barred as the result of the compromise reached in the state administrative proceeding. The agreement stated that “Employer and Employee intend for the [Agreement] to be a full and final resolution of all aspects of the … alleged work injury claim and its sequela whether known or unknown at this time.” The agreement further stated that “Employee is forever relinquishing any and all rights to seek any and all past, present and/or future benefits in connection with the alleged work injury,” and required the Employee to acknowledge that if the agreement were to be approved by a workers’ compensation judge, his claim would be closed forever and that his appellate rights waived.

Looking to solely to contract law, the Third Circuit rejected Boscov’s expansive reading of the agreement’s waiver provision as well beyond the contemplation of the parties in reaching their compromise of claims. Boscov’s argued that the term “sequela,” commonly understood as a medical term referencing the aftermath of sickness or injury, encompassed any and all rights that Zuber may have had to maintain a legal claim against the Employer arising from his work injury, no matter how distantly. The Third Circuit found support in its narrow reading of the agreement in the document’s structure, which was expressly stated to address Zuber’s work-related injuries only, and a common sense reading of the workers compensation case release and its limited purpose.

The decision serves as a useful cautionary warning to employers to be clear when stating what rights employees waive when compromising their claims. Here, post hoc, Boscov’s tried and failed to recast a limited agreement into a global resolution of claims between the parties. The Third Circuit makes clear that it will not allow employers to beat a narrow shield secured in settling a lesser claim into a broad sword to defeat an employee’s ensuing claims that are well outside the intended scope of the parties’ compromise.

If you have any questions or would like more information, please contact Mark C. Stephenson at [email protected].


Pa. County Didn’t Willfully Violate FLSA

Posted on: September 28th, 2017

By: Barry S. Brownstein

The Third Circuit has ruled that Pennsylvania’s Lackawanna County didn’t willfully violate the Fair Labor Standards Act when it failed to pay overtime to workers who performed multiple part-time jobs.

Souryavong and Rolon were among a group of employees who worked in two separate part-time capacities for Lackawanna County. The county purportedly tracked and paid these employees for each of their individual jobs. However, in 2011, it became aware that it had failed to aggregate the hours in both jobs, which resulted in a failure to pay the overtime rate for hours they worked beyond the 40 hour pay period.

Complaints were filed by Souryavong, Rolon and Velez in Pennsylvania federal court, alleging in part that the county violated FLSA’s overtime provisions. After about two years of litigation, it was undisputed that the county had violated the FLSA’s overtime provisions at various times, but the parties still disputed whether that violation was willful.

During the trial, the plaintiffs presented evidence that included documents showing the county’s failure to pay proper overtime. In addition, testimony from Lackawanna County’s chief financial officer indicated that the county was generally “aware” of its obligations under the FLSA “from 2007 onward.” Plaintiffs also proffered an email from Nancy Pearson, the county’s human resources director, to two other county officials that discussed certain county employees who were working “second jobs.”

At the close of trial, however, the county asked the court to enter judgment as a matter of law, arguing the employees’ evidence was insufficient to create a jury question on willfulness. U.S. District Judge A. Richard Caputo entered judgment in the county’s favor on the willfulness question, holding that the workers’ evidence did not “measure up.”

A three-judge panel found that the evidence didn’t suggest that the county was specifically aware of the two-job FLSA overtime problem, particularly as it related to Souryavong and Rolon, prior to the dates of the violations. In addition, the panel found that evidence, including testimony from both the county’s human resources director and chief financial officer that the county was generally aware of its FLSA obligations, wasn’t enough to show that the county willfully didn’t pay overtime to Souryavong and Rolon. Accordingly, the panel upheld the decision by Judge Caputo, holding that the county didn’t willfully commit the alleged violations.

If you have any questions or would like further information, please contact Barry S. Brownstein at [email protected].

Can a City Employment Agency Shut Down Your Business?

Posted on: August 23rd, 2017

By: Jennifer L. Ward

20150717203726-closed-close-sign[1]In the City of Brotherly Love, the answer is yes.

Signed into law on June 22, 2017, Bill No. 170334 now gives the Philadelphia Commission on Human Relations (“PCHR”) the power to shut down any business for an undefined period of time if it violates the City’s Fair Practices Ordinance. The Fair Practice Ordinance covers unlawful employment practices that prohibits discrimination of protected classes like age, ancestry, color, disability, ethnicity, sexual orientation, religion, and sex. The PCHR will only shut down a business if it has “engaged in severe or repeated violations” and has not made “effective efforts” to remedy such violations. However, it is still unclear what the standards are for violations to be considered “serious” and “repeated”. The undisclosed period of time that businesses would have to cease operations is also alarming.

Although the bill seems daunting to businesses, the city councilman’s office said that they hope to use the punishment rarely and that they hope that it will make business owners more aware and proactive with their employees. Even with the ambiguous standards of violation, employers can still protect themselves by giving their employees robust training and by having clearly defined policies and protocols. With these safeguards in place, employers will dramatically decrease their liability and protect themselves from getting shut down.

If you have any questions or would like more information, please contact Jennifer Ward at 267.758.6012 or [email protected].


NJ Supreme Court Revives Nurse’s Disability Discrimination Case

Posted on: August 3rd, 2017

By: Jennifer L. Ward


A recent NJ Supreme Court ruling made this month will cause all employers to think twice before denying a disabled employee’s request to return to work.

The New Jersey Supreme Court successful resuscitated nurse Maryanne Grande’s New Jersey Law Against Discrimination (NJ LAD) claim that was previously dismissed by the trial court on summary judgment in favor of Saint Clare’s Health System.  Grande appealed the dismissal.  A divided Appellate Division panel reversed the dismissal in favor of Grande because the record contained several material facts in dispute. The NJ Supreme Court affirmed the judgement of the Appellate Division and remanded the matter back to the trial court.

Who got it right? Trial court or the Appellate/Supreme Court?

Here is the short story. Grande underwent a workplace injury (requiring surgery of the cervical spine) that impacted her ability to lift heavy loads.  Upon returning to work, she was required to undergo a Functional Capacity Evaluation (FCE) which restricted her ability to lift no more than sixteen pounds.  Saint Clare’s written job description for a nurse specifically stated that one essential function of the job was to lift fifty pounds from waist to chest frequently. Shortly after the FCE, Grande was re-examined by her treating doctor who agreed with the restrictions in the FCE. The following day, Grande was terminated as a result of the objective evidence (FCE report and her treating doctor’s confirmation) which clearly states that she would be not be able to perform the essential functions of a nurse. Subsequent to her termination, Grande was re-examined by her treating doctor and cleared for her full range of duties with no restrictions, but Saint Clare’s opted not to rehire her.  In its ruling, the NJ Supreme Court concluded that Grande had met the standards to establish a case for disability discrimination under NJ LAD. She had also, the court said, created multiple questions of fact, including disputes as to whether lifting loads was part of her job, whether her prior absences from workplace injuries were “chronic,” and whether she would put herself or her patients at risk by returning to work. In a concurring opinion, Justice Jaynee LaVecchia added that she wished to “underscore that, in order for a disability discrimination claim to survive a summary judgment motion, the showing required of a terminated plaintiff regarding her ability to perform the essential functions of her job is a modest one.”

Despite the existence of a written job description that specifically states the lifting fifty pounds is an essential function of the job, an objective FCE report stating that Grande is unable to lift no more than sixteen pounds, which by the way was confirmed by her treating doctor—this is still not enough.  Moral of the story is the law is stacked against the employer.

If you have any questions or would like more information, please contact Jennifer L. Ward at [email protected]