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Posts Tagged ‘Pennsylvania’

Pennsylvania Orders Halt to Construction Projects Other than Emergency Repairs and the Construction of Health Care Facilities

Posted on: April 2nd, 2020

By: Sean Riley

Governor Tom Wolf has issued an executive order closing all businesses in Pennsylvania that are not deemed to be “life-sustaining.” Residential and non-residential building construction, as well as utility subsystem, road and bridge construction are all specifically listed as businesses that must immediately cease physical operations. However, “emergency repairs” and “construction of healthcare facilities” are permitted to continue. Businesses that are part of the supply chain or are otherwise necessary to support life-sustaining business may apply for a waiver but must do so on or before the April 3, 2020 deadline. Businesses should consult with legal counsel to determine whether such a waiver is appropriate.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on the construction industry, employment issues arising from the virus, the real-world impact of business restrictions, and education claims. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

PA Supreme Court Elevates State Pay Standards Above the FLSA on Fluctuating Work Week

Posted on: February 12th, 2020

By: Justin Boron

Going forward, Pennsylvania employers should be wary of relying on federal rules for their pay policies.

As a general principle, courts and regulators interpret Pennsylvania’s wage and hour laws consistently with the Fair Labor Standards Act.  But the Pennsylvania Supreme Court called this principle into question when it held that the fluctuating workweek method of calculating pay—which federal regulations expressly authorize—is not permitted under the Pennsylvania Minimum Wage Act.  See Chevalier v. Gen. Nutrition Ctrs., Inc., 220 A.3d 1038 (Pa. 2019).

The fluctuating workweek allows employers to meet their overtime obligations to nonexempt employees—under certain conditions—by paying the employee a fixed salary for fluctuating hours and paying a rate of at least one-half of the regular rate of pay for the hours worked each workweek in excess of 40.  See 29 C.F.R. 778.114(a).  But because the Pennsylvania wage law is silent on this issue, the Pennsylvania Supreme Court concluded that this method of pay calculation was not available.

The ruling itself is not breaking new ground.  Several Pennsylvania federal courts had previously held that the fluctuating workweek was not available under Pennsylvania law.  But it sounds a note of caution to Pennsylvania employers and their advisors about assuming that Pennsylvania wage law will agree with the FLSA and the regulations interpreting it.

It also could be a harbinger for shifts in interpretation of state wage laws in light of the DOL’s new proposed wage rules or rollbacks.  In fact, the Chevalier ruling came just weeks after the DOL proposed a revised version of the fluctuating workweek aimed at clarifying its application and potentially expanding its use under federal law.[1]

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

[1] https://www.dol.gov/agencies/whd/overtime/fww .

Pennsylvania Taking Steps to Help the Small Contractor

Posted on: November 21st, 2019

By: Josh Ferguson

There are currently two bills in the Pennsylvania House of Representatives intended to limit the ability of property owners, managers and general contractors from pushing their liability onto the sub-contractors.

Pennsylvania State Representatives introduced House Bill 1887, which would allow for only limited indemnification within construction contracts.  The Bill would amend Act 164, which has been in force since 1970.  If passed as written, the bill would significantly curtail broad and intermediate forms of indemnification.  Any level of negligence contributed by the owner or general contractor could eliminate their right to indemnification from a subcontractor.  This Bill would align Pennsylvania’s anti-indemnity statutes with that of Delaware, New York, and Ohio.

A similar indemnity limiting bill has been proposed to protect snow and ice management contractors. The Commercial Snow Removal Service Liability Limitation Act has been reintroduced into the Pennsylvania General Assembly. The proposed legislation, House Bill 1702, is intended to limit property owners and managers from passing on their negligence through hold-harmless agreements and indemnification clauses. Similar legislation has been adopted into law in Illinois, Colorado and Connecticut.

For further information or for further inquiries you may contact Joshua Ferguson of Freeman Mathis & Gary, LLP, at [email protected].

Interviewing on a Clean Slate: Employers’ Obligations Under Pennsylvania’s Newly Enacted Clean Slate Law

Posted on: August 26th, 2019

By: Sean Riley

Pennsylvania recently became the first state in the country to enact clean slate legislation, which provides for the automatic sealing of non-violent misdemeanor criminal records for those who qualify after a set period of time. The law is expected to seal approximately 30 million cases by June 2020 which corresponds to roughly half of the courts’ entire database. The Clean Slate Law prohibits employers from requesting an individual’s criminal history records that have been expunged or sealed pursuant to the new law and expressly authorizes an applicant to respond to an inquiry as if the offense did not occur. However, the law also provides immunity from liability for employers who hire an individual with an expunged or sealed criminal record in a civil action based upon damages suffered as a result of the employee’s criminal or unlawful actions and the individual’s suitability for employment. Accordingly, employers utilizing form applications requesting the disclosure of an applicant’s criminal history should now include a disclaimer on their applications that the candidate should not provide information about criminal conviction that has been expunged or sealed pursuant to law. While Pennsylvania is the first state to enact clean slate legislation, similar measures are catching on in other states such as Michigan and Colorado and similar legislation aiming to automatically clear certain federal records was introduced in Congress last year.

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

Pennsylvania Superior Court Maintains a Contempt/Sanctions Proceeding is a ‘Civil Proceeding’ Contemplated by the Dragonetti Act

Posted on: July 29th, 2019

By: Courtney Mazzio

In Pennsylvania, the Dragonetti Act created a wrongful use of civil proceedings cause of action, when a person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings if: (1) he acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and (2) the proceedings have terminated in favor of the person against whom they are brought. See 42 Pa.C.S.A. § 8351(a). Attorneys may be found liable under this cause of action.

Raynor v. D’Annunzio is a Dragonetti action brought by Plaintiff/appellant attorney,  stemming from contempt proceedings where sanctions were sought against her in an underlying civil suit. Raynor v. D’Annunzio, 2019 PA Super 72, 205 A.3d 1252. In the underlying action, a Philadelphia County Judge ultimately issued over $900,000 in sanctions against counsel for attempting to elicit certain testimony from her expert that was off-limits per a pre-trial in limine ruling. Plaintiff/appellant then appealed ruling to the Superior Court. There was a question over whether counsel had (1) intentionally violated the in limine ruling with her line of questioning of the expert, particularly where there was no  order instructing counsel to instruct her witness not to mention Plaintiff’s smoking history existed; and (2) whether there was evidence of record proving that counsel colluded with the expert in order to actively ignore the in limine ruling during questioning. On these bases, the Superior Court reversed the sanction orders of the trial court.

Plaintiff/appellant then brought this separate Dragonetti action against Plaintiff’s counsel in the underlying action, claiming counsel knew their requests for sanctions and contempt were unsupported by the facts and law, yet they pursued the action anyway in an effort to ruin counsel’s livelihood and professional life. Appellee filed Preliminary Objections, which resulted in the rare dismissal of a case with prejudice, in part on the basis that the phrase found in the Pennsylvania cause of action  “procurement, initiation, or continuation of civil proceedings” means the filing of a civil action, and does not include the filing of a post-trial motion. See id. at 1260. Plaintiff/appellant once again appealed the decision of the trial court. The Pennsylvania Superior Court found that a motion seeking a finding of contempt and a request for sanctions is, separate and distinct from post-trial motions alleging trial court error filed in the underlying lawsuit for the purposes of the Dragonetti Act. See id. at 1261-62. They determined it is essentially the same as the filing of a civil lawsuit. See id. Put another way, the Court found that seeking an adjudication of contempt and requesting sanctions constituted the procurement, initiation, or continuation of civil proceedings as contemplated by the Dragonetti Act. See id.  On this basis, the Court reversed the decision of the trial court sustaining the Preliminary Objections and remanded it to the trial court. It remains to be seen how the trial court will ultimately rule in this longstanding dispute riddled with contention.

If you have questions or would like more information, please contact Courtney Mazzio at [email protected].