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Posts Tagged ‘Philadelphia’

Eastern District of Pennsylvania Finds that School District Immunity does not Extend to Teacher’s Alleged Intentional Torts

Posted on: August 19th, 2019

By: Erin Lamb

An Eastern District of Pennsylvania judge ruled that the Philadelphia School District is immune from a lawsuit wherein a special education student was allegedly choked by his special education teacher. However, District Judge Gerald Pappert also ruled that the plaintiffs, the student and his mother, will still be able to seek punitive damages against the teacher over the allegations.

Plaintiffs allege that in March 2018, a special education teacher grabbed the fifth-grade student by his neck. The teacher was allegedly irate that the student had not put his pencil back in the right place. The Complaint alleges that the teacher choked the student and repeated pushed his head and body against the schoolroom wall, during class, and in front of other students.

The student’s mother sued and has alleged the use of excessive force against her son, deprivation of equal protection, intentional infliction of emotional distress, and assault and battery. She further alleged deliberate indifference by the School District to students’ rights to be free from excessive force because of an alleged failure to adequately train, supervise, or discipline its employees.

Judge Pappert ruled that plaintiffs failed to adequately plead their failure to train claims, and that the school was immune from the intentional infliction of emotional distress and assault and battery claims. Judge Pappert noted that the School District had a policy regarding excessive force that the teacher appeared to have disobeyed and rejected the argument that that immunity extended to the teacher. Plaintiffs’ allegations were sufficient to present a range of punitive damages claims against the teacher under both Section 1983, and the allegations of intentional tort.

Plaintiffs were granted leave to amend the Complaint to attempt “one last time” to allege facts to support her allegations of deliberate indifference against the School District,  but were not granted leave to amend any other claims against the School District.

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

Tucker v. Sch. Dist. of Phila., No. 19-889, 2019 U.S. Dist. LEXIS 136591 (E.D. Pa. Aug. 13, 2019)

 

Malware Incident in Philly Court that Downed Online Filing Highlights Concerns for Court Systems and Legal Community in the Future

Posted on: July 11th, 2019

By: Justin Boron

It’s back-to-normal for tech-dependent, legal professionals in the Philadelphia legal community. After a month with no access to online filing due to a malware incident in Philadelphia Court of Common Pleas, attorneys like me—who never knew a time where online filing didn’t exist—are again just a few keystrokes away from filing pleadings, motions, and briefs on time.

That means we can go back to filing mere minutes before the deadline, and it means an end to the anxiety from an uneasy dependence on staff and attorneys who still knew how to file it the ‘old-fashioned way’ — finalizing a paper brief enough in advance so that it can be mailed or walked-thru by a courier before the deadline. (It could have been worse: no one had to pull out the typewriter and white out).

But beyond the whiplash felt by tech-dependent professionals having their roles reversed with other more, tech-wary legal professionals, the malware incident announced May 21 illustrates how much online filing technology has changed the legal profession’s approach to deadlines, the need for local counsel or a reliable courier, and access to the hard copy record for court notices and pleading dockets—and how quickly its approach can regress if the system goes down.

It also exemplifies the increasing threat to public administration dependent on digital infrastructure.  The Emotet/Trickbot malware has evolved from mainly targeting banks to exposing flaws in the security of critical public infrastructure like courts, utilities, and local government facilities.[1]  In the last year, the City of Atlanta, the City of Baltimore, and other court systems have sustained similar incidents.

These security incidents can have serious consequences. Access to courts is a right that if deprived, can have dire consequences to criminal defendants.  It can also lead to paying expensive ransoms and could result in legal exposure if the threat actors are able to access and abscond with Personally Identifiable Information.

Fortunately, Philadelphia court officials believe there was no data removed from the system.  There was no reported ransom demanded, and court officials are shoring up the court’s digital security system to avoid a similar incident in the future.[2]

For other court and public administration systems tied to digital infrastructure, planning in advance of an incident will be key to how severely a security incident affects them.

As FMG has previously written on its Cyber, Privacy, and Security blog, the security incident within the City of Atlanta highlighted the importance of having adequate cyber insurance to cover the potentially high costs of breach response.[3]  Routine and pre-incident assessments as well as staying informed on the ever-changing landscape of threats also are important.  Likewise, it is advisable to retain breach counsel attorneys before an incident so they are familiar with the client’s systems and can move quickly to advise—within the protections of the attorney-client privilege—on steps to mitigate the harm from a security incident and to avoid legal exposure.

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

[1] https://blog.malwarebytes.com/cybercrime/2019/03/emotet-revisited-this-pervasive-persistent-threat-is-still-a-danger-to-businesses/

[2] https://www.inquirer.com/news/philadelphia-courts-virus-hackers-russia-20190621.html?outputType=amp

[3] https://www.fmglaw.com/FMGBlogLine/insurance/city-hacks-atlantas-2018-cyberattack-and-the-growing-need-for-cyber-liability-insurance/.

 

Philadelphia Burdens New Fair Workweek Law to Impact 130,000 Workers & Employers

Posted on: January 9th, 2019

By:  John McAvoy

On December 7, 2018, the Philadelphia City Council passed the Fair Workweek Employment Standards Ordinance by an overwhelming margin of 14-3. Effective January 1, 2020, the objective of the Ordinance, which was introduced in June by Councilwoman Helen Gym (D), is to provide more predictable hours, advanced scheduling, among a slew of other protections for the roughly 130,000 workers in the food, service, and hospitality industries. The Ordinance’s seven co-sponsors hope the new restrictions will help break the cycle of poverty plaguing the nation’s fifth largest city.

To that laudable yet impracticable end, the Fair Workweek Ordinance imposes significant restrictions and standards on large service industry employers with respect to how they schedule, hire, and pay their workers. It also provides for a private right of action against employers that permits recovery of back pay, presumed damages, liquidated damages up to $2,000, attorneys’ fees and equitable relief.

After much debate with local businesses, the new Ordinance as enacted covers only those “retail establishments,” “hospitality establishments,” and “food services establishments” that employ 250 or more employees overall and have 30 or more locations worldwide, including chains and franchise locations.

New York, San Francisco and other large municipalities through the country have been implementing similar “fair workweek” laws since 2014. Philadelphia is the second largest city to adopt the practice. Like similar legislation enacted across the country, Philadelphia Fair Workweek Ordinance imposes four main requirements on employers:

  1. Schedules in Advance. Employers must provide new hires with a written, good faith estimate of the employee’s work schedule. That schedule can change, but the initial estimate must include: the hours the employee can expect to work over a typical 90-day period; whether the employee can expect to work any on-call shifts; and “a subset of days and a subset of times or shifts that the employee can typically expect to work, or days of the week and times or shifts on which the employee will not be scheduled to work.” The employee can request a different work schedule, but the employer is free to grant or deny the request for any reason that is not unlawful. Employers will also have to consider employee work schedule requests, including requests not to be scheduled for certain shifts, days, times or locations as well as requests for changes in hours worked. Additionally, employers must provide employees with a written work schedule at least 10 days before the first day of a scheduled period (14-days effective January 1, 2021). Employees must receive notice of any proposed changes to the posted work schedule as promptly as possible and prior to the change taking effect, and they have the right to decline to work any hours not reflected on the posted work schedule.

 

  1. Predictability Pay. The Ordinance requires employers to compensate employees for changes to the work schedule. This is commonly referred to as “predictability pay.” The amount of the mandated compensation is to be determined. There are, however, exceptions to this requirement. For example, if the employee initiates the schedule change, or there’s a mutual agreement between the employer and employee, an emergency, or for one of the other less common reasons outlined in the Ordinance, then employers are under no obligation to provide predictability pay.

 

  1. Rest Between Shifts. An employee may decline, without penalty, any work hours that are scheduled or otherwise occur less than 9 hours after his or her prior shift ends. However, if the employee works that second shift, the company must pay that employee $40.

 

  1. Offer Work to Existing Employees. Employees must offer extra shifts to current employees before hiring a new employee. However, if existing employees turn down the offer of extra shifts or if extra shifts would implicate overtime pay, then employers are free to hire new employees.

Employers who violate these requirements subject their business to potential liability. The Free Workweek Ordinance makes it unlawful to interfere with, restrain, or deny the exercise of protected rights under the ordinance. Retaliation is also prohibited, with a rebuttable presumption of retaliation for any adverse action within 90-days of an employee exercising protected rights, unless the adverse action was due to well-documented disciplinary reasons that constitute just cause. The Office of the Mayor of Philadelphia is charged with enforcing the new Ordinance, raising questions as to enforcement policy and litigation.

Prudent employers should start preparing their businesses now, Even though the new requirements and standards imposed by the Ordinance do not take effect for another year. Complicating matters further is the fact that the Ordinance, as a whole, is rather vague and ambiguous in terms of the restrictions it imposes and the ways in which those restrictions will be enforced. Although the legislature should eventually issue regulations to resolve some of the uncertainty, it is unclear when that will occur or if it will happen before the Ordinance takes effect next January. As a result, employers are left fending for themselves to make sweeping changes to their scheduling, hiring, and payment policies, practices, and procedures towards complying with the Ordinance.

The uncertainty and other difficulties employers will likely experience navigating the exacting requirements of Philadelphia’s Fair Workweek Ordinance is nothing new. Employment law is rapidly changing and evolving in Philadelphia at an unparalleled pace. The Fair Workweek Ordinance joins the ranks of similarly taxing legislation such as Philadelphia’s Salary History Ban Law and its Ban-the-Box Law, to name but two of the many legislative minefields presently impacting local employers.

Given this is a rapidly changing and developing area of the law, employers are encouraged to charge someone in their human resources and/or compliance departments with staying current on Philadelphia’s new employment ordinances and regulations. Noncompliance with an applicable regulation or ordinance, no matter how vague it may be written, can lead to civil liability and ignorance of the law is no defense. Therefore, it is important that employers stay apprised of the rapidly changing employment laws. The person charged with this responsibility should understand the impact a new or proposed law might have on the business and recognize what, if any, changes in the law require an amendment to company policies. It is also suggested that employers consult with experienced legal counsel to ensure that their policies and procedures are fully complaint with new legislation.

Need help understanding/navigating Philadelphia’s new legislation or want to learn more about what Philadelphia’s Fair Workweek Ordinance means for your local business? Let Freeman Mathis & Gary’s employment experts help. Feel free to call or email John McAvoy (215.789.4919 [email protected]) for assistance with your company’s policies and procedures.

A Holly(cal) Jolly (Almost) Christmas

Posted on: December 28th, 2018

By: Zach Moura

In what is sure to be the beginning of a slew of cases litigating coverage for injuries caused by drones, the U.S. District Court for the Central District of California recently issued an opinion denying coverage under an aircraft exclusion in the drone operator’s Commercial General Liability (CGL) policy. Philadelphia Indemnity Insurance Company v. Hollycal Production, Inc., et al., 5:18-cv-00768.

The accident at issue occurred when Hollycal Production (“Hollycal”) used a drone to photograph an event. The drone collided with one of the attendees, Darshan Kamboj, blinding her in one eye. Ms. Kamboj subsequently filed suit against Hollycal, its owner, and the Hollycal employee that operated the drone. Hollycal tendered the defense of the suit to Philadelphia Indemnity Insurance Company (“Philadelphia”) under the CGL policy on which Hollycal was an additional insured. Philadelphia agreed to defend Hollycal under a reservation of rights, and then filed a declaratory judgment action seeking a determination that it had no duty to defend or indemnify Hollycal for the Kamboj suit.

Philadelphia moved for summary judgment, in part on the basis that the Aircraft exclusion in the Policy excluded coverage in pertinent part for bodily injury or property damage “arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured.” Because “aircraft” was not a defined term in the policy, the Court looked to the Merriam-Webster’s Collegiate Dictionary definition of the word, along with the definition included in 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1. The Court concluded that a “drone … is an aircraft under the term’s ordinary and plain definition.” Accordingly, the Court found that the Kamboj suit was excluded from coverage and Philadelphia had no duty to defend or indemnify Hollycal.

Drone operators will need to carefully review their insurance and ensure that they have appropriate coverage in place for their drone operations. As this matter makes clear, and as reinforced by recent reports of a drone striking the nose of an Aeromexico plane, an October near-miss of a drone by a passenger plane near London Heathrow, and the shutdown of London Gatwick airport last week because of suspected drone activity, there is substantial exposure arising from drone operations. Without the right insurance, operators may be left disastrously exposed.

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

Philadelphia’s “Salary History Ban Law” Gets Banned!

Posted on: May 7th, 2018

By: John McAvoy

More than a half-century after President JFK signed the Equal Pay Act, the gender pay gap is still with us. Women earn 79 cents for every dollar men earn, according to the Census Bureau.  What will it take to bridge that stubborn pay gap? Well, some believe we can and will reduce the impact of previous discrimination by not asking new hires for their salary history. Several cities and states agree with this approach and have passed legislation that prohibits employers from asking questions about an applicant’s salary history. In the cities and states where such laws have been passed, they are not without controversy.

Philadelphia passed a similar law last year. In response, Philadelphia’s Chamber of Commerce, backed by some of Philadelphia’s biggest employers, including Comcast and Children’s Hospital of Philadelphia (CHOP), filed suit against the City of Philadelphia challenging the constitutionality of the salary history ban law, arguing the portion of the law that prevents companies from inquiring about an applicant’s wage history violated an employer’s free speech rights.

On Monday, April 30, 2018, the Eastern District of Pennsylvania made two rulings with respect to Philadelphia’s salary history ban law in the matter of Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, docket no. 2:17-cv-01548-MSG (E.D. Pa. Apr. 30, 2018) (Goldberg, J.).

First, the court found that the law as written violated the First Amendment free speech rights of Philadelphia employers. In sum, the court’s ruling is that employers can ask salary history questions.

Second, the court upheld the ‘reliance provision’ of the salary history ban law, which makes it illegal to rely upon that wage history to set the employee’s compensation.  This means that Philadelphia employers can ask salary history but cannot use it as a basis to set salary.  The purpose of this is to encourage employers to offer potential candidates what the job is worth rather than based on prior salary which could have been set based on discriminatory factors.

There is a prevailing trend nationwide for salary history ban laws. To date, California, Delaware, Massachusetts, Oregon, Puerto Rico, New York’s Albany County, New York City, and San Francisco have enacted salary history ban laws, and at least 14 other states are considering following suit.  Although we anticipate future and continued legal challenges, it seems likely that laws banning salary history inquiries will continue to gain ground, particularly in more progressive states or areas where the pay disparity directly impacts a large segment of eligible voters. As such, prudent employers should prepare themselves to address this new workforce right through smart planning and proper training of employees, including managers, supervisors and HR personnel responsible for ensuring a lawful hiring process.

Want to learn more about what Philadelphia’s salary history ban law means for your business? Let us help you by analyzing your hiring practices. Please call or email the employment experts and John McAvoy (215.789.4919 [email protected]).