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

Say Goodbye to Arbitration; Say Goodbye to Confidentiality?

Posted on: December 20th, 2017

By: Christopher M. Curci

On December 4, 2017, New Jersey state Senator Loretta Weinberg introduced Senate Bill S-3581. The bill aims to (1) eliminate arbitration provisions in employment agreements related to discrimination, retaliation, and harassment claims, and (2) eliminate confidentiality clauses that are commonly found in employment settlement agreements for those claims.  The bill would bring significant change in the handling of employment litigation in New Jersey.

A recent study by the Economic Policy Institute found that 54% of non-union employers have mandatory arbitration procedures for employment related disputes. In 1992, that number was a mere 2%.  The meteoric rise in arbitration agreements is because employers consider arbitration less costly than federal or state court litigation, and because arbitration eliminates the risk of “runaway jury” awards to plaintiff-employees.  Conversely, opponents of mandatory arbitration assert that such agreements prohibit employees from having access to their full legal rights under federal and state employment laws.

Regarding confidentiality clauses, such clauses are almost always found in settlement agreements between employers and employees. However, the recent explosion of high-profile allegations of sexual harassment and the #MeToo social media movement has started a dialogue regarding whether confidentiality clauses should be made unlawful.  It is within this backdrop that Senator Weinberg has proposed Senate Bill 3581.

If passed, the bill would eliminate the use of arbitration for discrimination, retaliation, and harassment claims, and make it unlawful to have “confidential” settlements of such disputes. Employers should keep an eye on this bill and prepare to make necessary changes to their employment contracts and employee handbooks if the bill becomes law.  Employers should also consider the bill’s potential impact on any current or expected litigation.  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].

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].

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].

Employers Be Warned – A Single Use Of A Racial Slur Can Sustain A Workplace Harassment Claim

Posted on: August 1st, 2017

By: Barry S. Brownstein

Plaintiffs, Atron Castleberry and John Brown, brought a claim against staffing agency STI Group based upon their experience after being assigned to work as general laborers for Chesapeake. They allege in their lawsuit that a supervisor, after assigning them to a fence-clearing operation, threatened that they would be fired if they “[N-word]-rigged” the job. Two weeks after reporting the offensive language to a superior, they were fired without explanation. They were rehired shortly thereafter, only to be terminated again for “lack of work.”

Plaintiffs brought harassment, discrimination and retaliation claims as part of their lawsuit.  The District Court dismissed their claims on a motion to dismiss. The Third Circuit, however, found that the trial judge had applied the wrong standard in concluding that the two men needed to show their treatment had been “pervasive and regular.”  Referencing past rulings that characterized the standard alternatively as “pervasive and regular,” “severe and pervasive” and “severe or pervasive,” the Third Circuit clarified the standard required to assert a viable workplace harassment claim, holding that “severe or pervasive” is the correct standard.  Under the clarified standard, the panel concluded that the allegations were sufficient to survive a motion to dismiss. The context of the slur which came in connection with a threat of termination was something the Third Circuit considered an important factor in determining whether the claim cleared the “severe or pervasive” hurdle.

Based upon the inconsistencies in the Third Circuit’s prior holdings on the subject and the relevant precedent from the Supreme Court, it was not unexpected that the Third Circuit adopted the disjunctive standard of “severe or pervasive.”

Employers can protect themselves by having clearly defined policies, by regularly updating their employee training and even training supervisors separately from line employees.

For any questions, please contact Barry Brownstein at [email protected].

Federal Court Dismisses Chamber of Commerce’s Injunction Against Philadelphia’s Wage Equity Law

Posted on: May 31st, 2017

By: Christopher M. Curci

The Philadelphia Chamber of Commerce’s effort to halt the implementation of Philadelphia’s new wage equity law has been dismissed – for now.

By way of background, Philadelphia is at the forefront of increased legislative measures across the country designed to combat wage equity issues. In December of 2016, the Philadelphia City Council passed an ordinance making it unlawful for employers to (1) inquire about a prospective employee’s wage history, and (2) rely on a prospective employee’s wage history in determining that individual’s wages unless the employee “knowingly and willingly discloses” such information. Similar legislation was passed in Massachusetts in 2016 and Oregon last week.

The Philadelphia ordinance was set to go into effect on May 23, 2017. However, the Philadelphia Chamber of Commerce filed a Complaint and a Motion for Preliminary Injunction in the United States District Court for the Eastern District of Pennsylvania on April 6, 2017. In response, the City filed a Motion to Dismiss, arguing that the Chamber of Commerce did not have legal standing to challenge the ordinance. The City agreed to temporarily halt the effective date of the ordinance pending the Court’s decision.

Proponents of the City’s ordinance assert that basing a worker’s wages on her previous salary serves to perpetuate gender wage inequality. The Chamber asserts that the ordinance violates the constitutional rights of its members without meaningfully advancing the City’s interest in eliminating gender discrimination wage disparities. The Chamber further states that the language of the ordinance is overly broad and vague, thereby making it unduly burdensome on employers. In its Motion for Preliminary Injunction, the Chamber stated that the ordinance would be less restrictive and constitutional if it allowed wage history inquiries, but prohibited employers from using wage history as the sole determination of a worker’s salary.

On May 31, 2017, the Court held that the Chamber of Commerce lacks standing to challenge the City’s ordinance. The Court did not address the merits of whether the ordinance passes constitutional muster.  However, that issue may still be decided on another day.  The Court’s holding was predicated on the fact that the Chamber did not identify a member who would suffer specific harm from the Ordinance.  The Court has allowed the Chamber fourteen days to file an Amended Complaint, and there is also the possibility of an individual business filing a similar Complaint.

Philadelphia employers should be aware of this litigation and the possibility of the ordinance taking effect this summer. Violations of the ordinance can result in compensatory damages, punitive damages, fines, and even imprisonment.

For any questions, please contact Chris Curci at [email protected].