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Posts Tagged ‘Pennsylvania’

Guns in the Workplace: A Primer for Employers in PA & NJ

Posted on: April 12th, 2018

By: John P. McAvoy

Presently and tentatively, Pennsylvania and New Jersey do not have guns-at-work laws. There are, however, gun laws in place in both states that similarly impede an employer’s ability to control the workplace; namely, the states’ right-to-carry laws.

New Jersey has some of the most restrictive right-to-carry laws in the country. For starters, the state does not allow individuals to open carry handguns. The state is also known as a “may issue” state, which means the chief police officer of a city or county, or the superintendent of the state police, has discretion in determining whether to issue a concealed weapons permit to an applicant. New Jersey law generally forbids any person to “ha[ve] in his possession any handgun …, without first obtaining a permit to carry the same.” N.J.S.A. § 2C:39-5(b). While state law provides certain exceptions to this general ban—including one for “keeping or carrying [a firearm] about [one’s] place of business, residence, premises or other land owned or possessed by him,” id. at § 2C:39-6(e), these exceptions do not allow the concealed carrying of a handgun in public without first obtaining a permit, and it is nearly impossible for an individual to obtain a handgun carry permit in New Jersey. See generally id. at §§ 2C: 58-3; 58-4; and N.J.A.C. 13:54-2.4(b) (outlining numerous screening and training requirements an applicant must satisfy in order to be eligible for a handgun carry permit, including a ‘justifiable need’ to carry a handgun). New Jersey’s right-to-carry laws are so restrictive that the state does not have or need separate laws governing firearms on private property, including parking lots, much less in the workplace. On their face, these laws make it unlawful for almost all employees to possess concealed firearms in the workplace.

Pennsylvania’s right-to-carry laws are far less exacting than their New Jersey counterparts. Unlike New Jersey, Pennsylvania law is silent on the legality of openly carrying a firearm, making it de facto to do so in all places except Philadelphia. It is also a “shall issue” state. This means that while a person needs to obtain a license to carry a handgun, the granting authority (i.e., the sheriff or police chief) has no discretion to deny an applicant provided he or she meets the necessary character and fitness requirements. See 18 Pa. C.S. § 6109. Unlike New Jersey, there is no requirement that an applicant demonstrate “good cause” for the weapon. Instead, law enforcement has 45 days to investigate an applicant’s background to determine eligibility. See id. Moreover, and with the limited exception of commonsense places designated by statute as off-limits, including schools, correctional facilities, and courts, id. at §§ 912-913, 5122; 50 P.S. § 4605; et al., any employee with a license to carry may come to work with a gun concealed on his or her person.

While Pennsylvania’s right-to-carry laws are relatively liberal, there are no state laws that force an employer or business to allow or prohibit guns on its property. While 20 states have laws that regulate whether employees have the right to transport and store licensed, concealed weapons in their locked vehicles in an employer’s parking lot, the majority of states – including Pennsylvania – do not.  Without an express statute on point, courts generally give employers the right to control the workplace. As such, employers are free to impose policies allowing or restricting the possession of weapons in vehicles parked on company property and/or in the workplace.

In 2015, the Superior Court of Pennsylvania addressed an employer’s efforts to control the workplace by enforcing its weapons restrictions policy. In Stewart v. FedEx Express, 114 A.3d 424 (Pa. Super. 2015), the Superior Court upheld the right of FedEx to terminate the plaintiff for carrying a handgun in the glove compartment of his personal vehicle while performing work for FedEx. Id. at 424. FedEx’s policy prohibits employees from having firearms or weapons on company property, in company vehicles or in company buildings, unless authorized by FedEx security. Id. at 426. In so holding, the Superior Court noted that Pennsylvania is an at-will state and rejected the plaintiff’s constitutional claim that he had an unrestricted “right to bear arms,” even at work, and reasoned that “neither the Second Amendment to the United States Constitution, nor the Pennsylvania Constitution, bestows on any person the right to carry a concealed firearm or transport a loaded firearm in a vehicle.” Id. at 428-29. Moreover, the Court noted that Pennsylvania has no right-to-carry law that restricts employers from prohibiting firearms on their property or while performing work duties. Id. at 429.

Pennsylvania and New Jersey are ‘employment at-will’ states; meaning, employers may generally terminate an employment relationship at any time and for any reason. Therefore, employers in both states are free to terminate an employee for any reason regardless of whether there is a specific policy on point. Nevertheless, it is a good idea for employers in Pennsylvania and New Jersey to follow FedEx’s example and take similar steps to control the workplace.

Pennsylvania employers in favor of guns in the workplace may impose policies relative to same. These policies should detail the type of weapons permitted in the workplace and in vehicles parked on company property, and state that the company policy is subject to the licensing requirements of state law. These policies should also set forth the employer’s expectations with respect to the handling and storage of weapons on company property and in the workplace. To limit any potential confusion with respect to the company’s expectations and what is and is not permissible, it is recommended that employers make their policies as detailed as possible.

New Jersey’s right-to-carry laws are so restrictive that is almost always unlawful for an employee to possess a firearm in the workplace. As such, most New Jersey employers cannot authorize their employees to possess a firearm in the workplace without violating state law. However, to avoid any ambiguity and as an added layer of protection from liability, New Jersey employers may also adopt policies to better control the workplace.

It is important for Pennsylvania employers opposed to the idea of guns and other weapons in the workplace take steps to further their interests. To that end, Pennsylvania employers may implement policies that prohibit employees from having firearms or weapons on company property, in company vehicles or in company buildings. Absent such policies, there is nothing prohibiting a properly licensed Pennsylvania employee from bringing his or her concealed gun to the workplace.

It is recommended that the policies adopted and implemented by employers opposed to guns and weapons in the workplace in both states clearly explain that all employees, including those with licenses to carry, are forbidden from having firearms or weapons on company property, in company vehicles, or in company buildings, unless expressly authorized by the employer. It is also a good idea for these policies to provide that violation of the company’s weapons policies is grounds for immediate termination, as it would make the process of terminating an employee for-cause much cleaner and could allow the employer to save on future litigation and unemployment benefits costs associated with the termination. This is because employees that are terminated for-cause are generally ineligible to receive unemployment benefits and will have a harder time asserting a meritorious wrongful termination lawsuit against their former employers.

Given this is a rapidly changing and developing area of the law, it is also suggested that employers charge someone in their human resources and/or compliance departments with staying current on the gun control regulations. Absent immunity, complying with a law that allows employees to bring concealed firearms to the employer’s property can increase legal risk. In contrast, noncompliance with a gun law can lead to civil liability or criminal penalties in some states. Therefore, it is important that employers stay apprised of the rapidly changing gun laws of each state in which they conduct business. The person charged with this responsibility should understand the impact the new gun control law might have on the business and recognize what, if any, changes in the law require an amendment to company policies.

If you have any questions or would like more information, please contact John McAvoy at [email protected].

When Appealing to the Environmentally-Friendly Consumer Results in RICO Litigation

Posted on: April 6th, 2018

By: Justine A. Baakman

With the push toward production of environmentally friendly motor vehicles driven primarily by consumer demand, vehicle manufacturers have been forced to rapidly adapt vehicle design and marketing strategies.  Appeals to the environmentally conscious consumer often involve touts of vehicle emissions test results with the goal of elevating one’s vehicle above the competition through achieving a lower result than any vehicle on the market.  The necessity to meet consumer demand in this respect has left vehicle manufactures open to suit by consumers unsatisfied with the emissions performance of their vehicles as compared to those advertised by vehicle manufactures.

BMW North America is the latest vehicle manufacturer facing such litigation.  In a class action federal suit filed by consumers residing in Pennsylvania, Maryland, and Colorado, BMW faces allegations of fraud, misrepresentation, and violation of consumer protection and unfair trade practices laws in relation to its emissions test results advertising of its 2009-2013 X5 xDrive 35d models and its 2009-2011 330d models.  BMW faces allegations that the subject models emit significantly higher levels than those advertised to consumers.

BMW has also been accused of violating the Racketeer Influenced and Corrupt Organizations Act (RICO) arising from allegations that it installed emissions cheat devices on the models at issue to render lower emissions test results, and in turn, appeal and attract environmentally conscious consumers to its vehicles.  Additional allegations include that the models at issue emit emissions at 27 times higher than the maximum level allowed by the Environmental Protection Agency, and that BMW colluded with a vehicle parts maker to attain the results advertised to consumers.

For further information or for further inquiries involving commercial liability, you may contact Justine Baakman of Freeman Mathis & Gary, LLP, at [email protected].

Non-Pennsylvanians Can Sue Pa. Businesses for Out of State Transactions Under the Pennsylvania Unfair Trade Practices Consumer Protection Law

Posted on: March 2nd, 2018

By: Erin E. Lamb

Citizens from outside Pennsylvania can now sue Pennsylvania businesses for transactions that occurred outside the commonwealth, under the Pennsylvania Unfair Trade Practices Consumer Protection Law (UTPCPL). The Pennsylvania Supreme Court, in a unanimous ruling, affirmed such to the U.S. Court of Appeals for the Third Circuit in the class action suit Danganan v. Guardian Protection Services. The Third Circuit had certified the question to the Supreme Court of Pennsylvania. Previously, the District Courts within the Third Circuit had held repeatedly that the UTPCPL only applied to Pennsylvania business regarding Pennsylvania transactions.

Plaintiff Jobe Danganan sued Pennsylvania-based UTPCPL under the UTPCPL after he continued to be billed for a home security system in a Washington, D.C., house aft he had moved and after he had cancelled the contract. The district court ruled against him and he appealed to the Third Circuit.

Danganan argued that the language of the UTPCPL, specifically the terms “person,” “trade” and “commerce,” did not denote a specific geographic requirement, according to the Supreme Court’s opinion written by Chief Justice Thomas G. Saylor. The Court agreed. “Respecting the specific terms employed by the UTPCPL, we agree with appellant’s observation that the plain language definitions of ‘person’ and ‘trade’ and ‘commerce’ evidence no geographic limitation or residency requirement relative to the law’s application,” Saylor said. However, the law does state that it applies to conduct that “directly or indirectly affect[s] the people of this commonwealth.” Saylor, writing for the Court, did away with that clause by stating “that phrase does not modify or qualify the preceding terms. Instead, it is appended to the end of the definition and prefaced by ‘and includes,’ thus indicating an inclusive and broader view of trade and commerce than expressed by the antecedent language.”

Saylor also said the statute is meant to be construed liberally as it covers an expansive breadth of conduct. “In this respect, we recognize, as we previously have, the wide range of conduct the law was designed to address, including equalizing the bargaining power of the seller and consumer, ensuring the fairness of market transactions, and preventing deception and exploitation, all of which harmonize with the statute’s broad underlying foundation of fraud prevention,” Saylor said.

This has far-reaching implications for Pennsylvania’s businesses, particularly in the context of class actions like the one at issue in this case. (Its application to a certain global telecommunications conglomerate that is the largest broadcasting and cable television company in the world by revenue certainly springs to mind.)

If you have any questions or would like more information, please contact Erin Lamb at [email protected].

Governor Wolf Proposes New Overtime Rules for Pennsylvania

Posted on: February 20th, 2018

By: Christopher M. Curci

Employers may recall the Obama administration’s efforts in 2016 to increase the overtime rule salary exemption from $23,600 annually to $47,476 annually.  By way of background, employers are required to pay overtime to employees who work over 40 hours in a given workweek.  However, many “white collar” employees are exempt from the overtime rules if their salary is above the $23,600 annual threshold.

The Obama administration’s proposed changes in 2016 caused quite a hubbub, finding strong support from pro-employee groups and strong opposition from pro-business groups.  Ultimately, the proposed changes were struck down by a federal court and the Presidential administration turned over to President Trump, largely mooting the issue.

However, Pennsylvania employers should be aware that Governor Wolf recently announced a similar change to Pennsylvania’s wage and hour laws as part of his “Jobs That Pay” initiative.  Governor Wolf’s proposal calls for increasing the salary exemption to $31,720 annually in 2020, $39,832 annually in 2021, and $47,892 annually in 2022.  Thereafter, the salary threshold will continue to increase every three years.

The Governor’s office estimates the proposed changes will increase the wages of 460,000 workers in Pennsylvania.  While the proposed changes have not yet been passed and would not take place for some time, employers should always be aware of the potential for significant change in wage and hour laws.  It is important that employers plan well in advance for such significant change to manage their own business finances and avoid costly wage and hour violations.

Christopher M. Curci, Esq., is a Pennsylvania and New Jersey Labor and Employment Attorney and member of Freeman Mathis & Gary’s Labor and Employment Law National Practice Section.  He represents employers in litigation and advises clients on all aspects of employment law.  If you need help with this or any other employment issue, he can be reached at [email protected].

Is an Unethical Fee-Splitting Agreement Per Se Unenforceable? Perhaps Not

Posted on: January 4th, 2018

By: Mark C. Stephenson

Rule of Professional Conduct 5.4 limits the circumstances in which an attorney may share legal fees with a non-lawyer. A recent Pennsylvania Supreme Court decision considered what impact Rule 5.4 has on the claim that was made by a non-lawyer acting as a consultant to a law firm, who sought to enforce an alleged right to recover a five-percent share of the firm’s annual profit.  Rule 5.4 allows a lawyer or law firm to include nonlawyer employees in a firm compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement. In SCF Consulting v. Barrack, Rodos & Bacine, the non-lawyer/consultant was independent and not a firm employee, such that the fee-splitting arrangement at issue violated the rule. But did that violation bar his breach of contract claim?

SCF Consulting entered into a written agreement with the Barrack firm to work exclusively to develop the firm’s securities class action business in exchange for a fixed annual consulting fee plus a five-percent share of profit. The Barrack firm allegedly later refused to pay SCF Consulting the agreed upon bonus and SCF sued. The trial court granted summary judgment to the firm, finding that Rule 5.4 prohibited the arrangement and rendered the contract unenforceable. On appeal, the Pennsylvania Superior Court affirmed summary judgment, noting that there was no dispute that the non-lawyer consultant was not an employee of the firm which made Rule 5.4’s exception for employee profit-sharing plans inapplicable.

The Pennsylvania Supreme Court granted allocator on the question of whether public policy required the agreement be enforced as to the non-lawyer because an attorney must not be shielded from liability nor financially rewarded for violating the Rules of Professional Conduct. On December 19, 2017, Chief Justice Saylor wrote for a fractured majority to reverse summary judgment and remand for further proceedings, holding that an unethical fee-splitting agreement is not per se unenforceable as to the non-lawyer but may become so if the court determines that the non-lawyer bore some responsibility for the ethical violation. Justice Baer (joined by Justice Todd), concurring and dissenting, would have held that, “because a non-lawyer is not bound by the Rules of Professional Conduct, the non-lawyer committed no unethical or illegal act by entering into the agreement and, thus, can bear no measure of responsibility relative to the law firm’s material violations of the rules governing the profession.” Justice Wecht (joined by Justice Donahue) dissented, arguing that a such arrangements must be per se unenforceable and leaving the non-lawyer to seek relief in equity by showing, among other things, that they entered the agreement with clean hands.

As legal fee arrangements become increasingly creative, there is clear indication that the courts will not allow lawyers and law firms to use Rule 5.4 as a shield to avoid liability for otherwise required payments to non-lawyers. Practitioners should also take note that nothing in SCF Consulting relieves the law firm from its violation of Rule 5.4 and potential penalties that may apply. Arguably, a law firm’s attempts to manipulate Rule 5.4’s prohibition of legal fee sharing with non-lawyers only serves to underscore the severity of the firm’s original ethical violation by entering into the prohibited relationship in the first place.

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